Homewood v R

[2023] NSWCCA 159

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Homewood v R [2023] NSWCCA 159

Hearing dates:

15 May 2023

Decision date:

30 June 2023

Before:

Beech-Jones CJ at CL at [1];
Ierace J at [9];
Cavanagh J at [78]

Decision:

(1)   Grant leave to appeal.

(2)   Allow the appeal.

(3)   Quash the sentences imposed in the District Court by Colefax SC DCJ on 3 February 2023.

(4)   Resentence the applicant as follows:

(a)    For the terrorism offence, impose a term of imprisonment of 2 years and 4 months, backdated to commence on 23 November 2021 and to expire on 22 March 2024, with a non-parole period of 1 year and 9 months, to expire on 22 August 2023.

(b)    For the ammunition offence, impose a fixed-term sentence of imprisonment of 5 months, backdated to commence on 23 November 2021 and to expire on 22 April 2022.

Catchwords:

CRIME – Appeals – Appeal against sentence – Advocating terrorism and related offence of failing to lawfully store ammunition – Where notional starting point for ammunition offence equivalent to maximum penalty – Whether sentence manifestly excessive – Whether lesser sentence warranted

CRIME – Appeals – Appeal against sentence – Advocating terrorism – Where advocating terrorism a minimum non-parole offence – Whether intensive correction order (ICO) an available sentencing option – Whether an ICO is a sentence or order that “involves” imprisonment for the purposes of s 20AB(6) Crimes Act 1914 (Cth) – Whether 20AB(1A) permits an ICO to be made for federal offence without first imposing a sentence of imprisonment pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Legislation Cited:

Acts Interpretation Act 1901 (Cth)

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Criminal Procedure Act 1986 (NSW)

Firearms Act 1996 (NSW)

Judiciary Act 1903 (Cth)

Cases Cited:

Al Am Ali v R [2021] NSWCCA 281

Commonwealth Director of Public Prosecutions v Joyce [2022] FCA 1423

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97

Mourtada v The Queen [2021] NSWCCA 211; (2021) 290 A Crim R 514

R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225

R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522

Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

Category:

Principal judgment

Parties:

Wade Homewood (Applicant)
Rex (Respondent)

Representation:

Counsel:
S J Odgers SC (Applicant)
P R McGuire SC (Respondent)

Solicitors:
RJ O’Halloran & Co Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2021/333675

 Decision under appeal 

Court or tribunal:

District Court

Citation:

R v Homewood [2023] NSWDC 3

Date of Decision:

3 February 2023

Before:

Colefax SC DCJ

File Number(s):

2021/333675

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 3 February 2023 the applicant, Wade Homewood, was sentenced in the District Court at Parramatta to 2 years and 7 months’ imprisonment with a non-parole period of 1 year and 11 months, for advocating terrorism contrary to s 80.2C of the Criminal Code Act 1995 (Cth) (the terrorism offence). A wholly concurrent fixed-term sentence of 8 months was imposed for an offence of failing to store ammunition in an approved storage space contrary to s 40(1) of the Firearms Act 1996 (NSW) (the ammunition offence).

The facts of the offending were to the following effect. Over a period of 31 months the applicant used multiple online platforms to advocate acts of serious violence, including the mass murder of persons of colour and of the Jewish and Islamic faiths, the assassination of certain Australian government leaders and the lionising of right-wing perpetrators of racially-motivated mass killings. Following the applicant’s arrest, police located 8,312 rounds of ammunition of assorted calibres in his bedroom.

The applicant sought leave to appeal against his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on two grounds. The first ground was that the sentence imposed in respect of the ammunition offence was manifestly excessive (ground 1). The second ground was that the sentencing judge erred in deciding whether to make an intensive correction order directing that the sentence for the terrorism offence be served by way of intensive correction in the community (ground 2).

In relation to ground 2, the applicant accepted that the terrorism offence was a “minimum non-parole offence” pursuant to s 19AG of the Crimes Act 1914 (Cth) but submitted that an intensive correction order (ICO), as provided for in s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act), could be imposed for such an offence. Sections 20AB(1) and 20AB(1AA)(a)(ix) of the Crimes Act 1914 enable a sentencing court to make an ICO for a federal offence. Section 20AB(6) provides that s 20AB(1) does not permit a court “to pass a sentence, or make an order, that involves detention or imprisonment” in respect of a person convicted of a minimum non-parole offence.

Section 7(1) of the CSP Act provides than an ICO can only be made once a court has sentenced an offender to a term of imprisonment. However, the applicant contended that a court dealing with an individual for a federal offence is not required to first pass a sentence of imprisonment before making an ICO due to the effect of s 20AB(1A) of the Crimes Act 1914. It was submitted that the making of an ICO for a minimum non-parole offence therefore does not “involve detention or imprisonment” within the meaning of s 20AB(6).

The Court held (per Ierace J; Beech-Jones CJ at CL and Cavanagh J agreeing with additional reasons), allowing the appeal and re-sentencing the applicant to an effective sentence of 2 years and 4 months with a non-parole period of 1 year and 9 months:

As to ground 1

1. The sentence imposed for the ammunition offence was manifestly excessive. The sentencing judge’s notional starting point for the sentence was 12 months’ imprisonment, which was reduced for the applicant’s early guilty plea to arrive at a sentence of 8 months. The nominal starting point is the maximum penalty for the offence, which is irreconcilable with the sentencing judge’s finding that the level of objective seriousness was not in the worst category: Ierace J at [17]; Beech-Jones CJ at CL agreeing at [8]; Cavanagh agreeing at [78].

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48, referred to.

As to ground 2

1. An ICO is a sentence or order that “involves” imprisonment for the purposes of s 20AB(6) of the Crimes Act1914 and is not an available sentencing option for the terrorism offence: Beech-Jones CJ at CL at [6].

2. The ordinary meaning of s 20AB(6) of the Crimes Act 1914 is that a court that is sentencing a person for a minimum non-parole offence cannot make an order of a type identified in s 20AB(1AA) if, in order to do so, it first determines that a sentence of detention or imprisonment is the appropriate sentence. That interpretation is fortified by the supplementary explanatory memorandum of the Bill: Ierace J at [69]-[70]; Cavanagh J agreeing at [78].

3. The reasoning advanced by the applicant to the effect that the term “imprisonment” in s 20AB(6) means “actual” imprisonment to distinguish it from “something other than actual imprisonment”, is artificial and contrary to the ordinary meaning of the word, its context and the objective of the subsection: Ierace J at [70]; see also Cavanagh J at [86].

As to re-sentencing

1. A lesser sentence is appropriate. In relation to the terrorism offence, a sentence of 2 years and 4 months with a non-parole period of 1 year and 9 months is imposed. The ratio of the non-parole period to the total sentence is 75 per cent, pursuant to the minimum ratio prescribed by s 19AG(1)(c) and (2) of the Crimes Act 1914. An entirely concurrent, fixed-term sentence of 5 months’ imprisonment is imposed for the ammunition offence: Ierace J at [71]-[76]; Beech-Jones CJ at CL agreeing at [8]; Cavanagh J agreeing at [88].

JUDGMENT

1. BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Ierace J. As his Honour notes, a significant aspect of the parties’ submissions in relation to the resentencing of the applicant for the federal offences he committed concerned whether the Court could and, if so, should make an Intensive Correction Order (“ICO”) as provided for in s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “Sentencing Act”).

2. In relation to whether the Court could make such an order, the applicant submitted that a combination of ss 20AB(1) and (1AA)(a)(ix) of the Crimes Act 1914 (Cth) enables a sentencing court, including this Court, to make an ICO. The Crown submitted that those provisions do not authorise the imposition of such an order in this case because of the operation of s 20AB(6), which precludes the Court from doing so where the sentence or order “involves detention or imprisonment, in respect of the conviction of a person… of a minimum non-parole offence mentioned in section 19AG”. Section 19AG specifies that an offence against, inter alia, Div 80 of the Criminal Code Act 1995 (Cth), such as that committed by the applicant, is a “minimum non-parole offence”.

3. Senior Counsel for the applicant, Mr Odgers SC, submitted that s 20AB(6) did not preclude the making of an ICO given that s 20AB(1A) provides that, where a “law of a participating State or a participating Territory” requires that “before passing a sentence, or making an order, of the kind referred to in [s 20AB(1)(b)] a court must first pass another sentence or make another order… then, a court is not required, before passing or making that first-mentioned sentence or order in respect of a person convicted by that court for a federal offence, to pass that other sentence or make that other order” (emphasis added). A participating State or Territory is a State or Territory that has arrangements in place for their officers to enforce the provisions of the Crimes Act and orders made thereunder (as well as the facilities and procedures to do so) (Crimes Act, s 3B(2)). Mr Odgers submitted that s 20AB(1A) has the effect that, when sentencing judges make an ICO for a federal offence, they are not required to first impose a sentence of “imprisonment” as contemplated by the Sentencing Act. Thus, it was submitted that the making of an ICO for a federal offence that is a minimum non-parole offence does not “involve” detention or imprisonment within the meaning of s 20AB(6) of the Crimes Act.

4. The provisions of s 20AB make it clear that the various sentencing options specified in s 20AB(1AA) take their colour and meaning from the provisions of the relevant “law of the State or Territory” (s 20AB(1)(b)). In this case, that “law” is the Sentencing Act. Section 7 of the Sentencing Act makes it clear beyond argument that in New South Wales an ICO can only be imposed once a court “has sentenced an offender to imprisonment for 1 or more offences” (s 7(1)). It is true that s 20AB(1A) liberates the sentencing court from the requirement imposed by the “law of a participating State or a participating Territory” to sentence an offender to imprisonment before imposing a sentence or making an order of the kind referred to in ss 20AB(1)(b) and (1AA) (emphasis added). However, in the case of an ICO imposed for a federal sentence, I cannot conceive how an offender would not still have to be sentenced to a term of imprisonment as required by either the Crimes Act or the Sentencing Act applying by its own force or as picked up and applied by s 68(1) of the Judiciary Act 1903 (Cth) (see Mourtada v R [2021] NSWCCA 211; (2021) 290 A Crim R 514 at [16] per Basten JA with Campbell J agreeing). Given the legislative history and purpose of ICOs, if an ICO is not to be treated as something imposed once a sentencing court has determined that a sentence of imprisonment is appropriate, then it is deprived of any substantive content (see ibid; Mandranis v The Queen [2021] NSWCCA 97; (2021) 289 A Crim R 260 at [25] per Simpson AJA with Garling and N Adams JJ agreeing; R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225). An ICO must operate for a period of time that is determined by the sentence of imprisonment that has been first imposed by the Court (see, for example, Commonwealth Director of Public Prosecutions v Joyce [2022] FCA 1423).

5. Moreover, without a sentence of imprisonment being imposed before or at the time an ICO is made, then it is difficult to see how an ICO could be enforced. An offender who breaches an ICO is subject to the scheme for revocation and possible reinstatement of the ICO found in Div 1 of Pt 7 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the “CASA Act”). In particular, the State Parole Authority is given power to revoke an ICO by s 164(2)(e) of the CASA Act. If the Parole Authority exercises that power, it may issue a warrant “committing the offender to a correctional centre to serve the remainder of the sentence to which the order relates by way of full-time detention” (CASA Act, s 181(1); emphasis added). These provisions operate on the assumption that the revocation of the ICO will leave the sentence of imprisonment (which was imposed prior to the imposition of the ICO) intact and legally operative to require the imprisonment of the offender for the balance of the sentence. If no sentence of imprisonment is imposed prior to (or as part of) the making of an ICO, then a revocation of an ICO would not appear to have any practical effect other than to possibly release the offender from the necessity to comply with any conditions that were imposed.

6. It follows that an ICO is a sentence or order that “involves” imprisonment for the purposes of s 20AB(6) of the Crimes Act. Hence, I agree with Ierace J that it is not an available sentencing option in this case.

7. Had an ICO been an available sentencing option in this case, two further questions would have arisen out of the Crown’s submission that the objective seriousness of the applicant’s offending precluded consideration of an ICO. The first question is whether that submission is itself precluded by the judgment of Gordon, Edelman, Steward and Gleeson JJ in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 97 ALJR 107 (“Stanley”), especially at [73]−[77]. The second question is how that part of the reasoning in Stanley along with s 66 of the Sentencing Act upon which it is based engages with the balance of the provisions of the Crimes Act especially s 16A (Al Am Ali v R [2021] NSWCCA 281 at [1]). However, given the conclusion I have reached about the availability of an ICO, it is not necessary to address those issues.

8. I otherwise agree with Ierace J and the orders his Honour proposes.

9. IERACE J: The applicant seeks leave to appeal against two sentences of imprisonment that were imposed on him, following early pleas of guilty, by Judge Colefax SC (the sentencing judge) in the District Court at Parramatta: R v Homewood [2023] NSWDC 3. The two offences are as follows:

1. Between 27 March 2019 and 23 November 2021, he intentionally advocated the doing of a terrorist act or the commission of a terrorist offence referred to in s 80.2C(2) of the Criminal Code Act 1995 (Cth), being reckless as to whether another person will engage in a terrorist act or the commission of a terrorism offence referred to in s 80.2C(2) of the Criminal Code (the terrorism offence);

2. On 23 November 2021, he failed to store ammunition in an approved storage space whilst the holder of a firearms licence, contrary to s 40(1) of the Firearms Act 1996 (NSW) (the ammunition offence).

10. The maximum penalties were, for the terrorism offence, 5 years imprisonment and for the ammunition offence, 12 months’ imprisonment and 20 penalty units. The ammunition offence was a “related offence” within the terms of s 166 of the Criminal Procedure Act 1986 (NSW) and had been transferred from the Local Court to the District Court for sentence.

11. For the terrorism offence, the sentencing judge handed down a sentence of 2 years and 7 months, backdated to commence on the date of the applicant’s arrest and entry into custody, which was 23 November 2021. His Honour fixed a non-parole period of 1 year 11 months, which will expire on 22 October 2023. The balance of term of 8 months will expire on 22 June 2024. I note that the ratio of the non-parole period to the total sentence is 74.2 per cent.

12. For the ammunition offence, the sentencing judge imposed a fixed term of imprisonment of 8 months, to be served wholly concurrently with the sentence for the terrorism offence. Accordingly, that sentence expired on 22 July 2022.

13. The sentences were handed down on 3 February 2023. On 15 March 2023, the sentencing judge forwarded to the parties a notice of “orders made in chambers” in relation to the sentence that had been imposed for the terrorism offence (the further orders). It was noted in the document that “the fixing of a non-parole period … was impermissible”. It recorded two purported orders, the first being that the sentence for the terrorism offence was “set aside” and the second sentencing the applicant “to a term of imprisonment of 2 years and 7 months to date from 23 November 2021; and that he be released to a recognizance order of 8 months to date from 23 October 2023”. The parties had not been forewarned of the sentencing judge’s intention to re-sentence the applicant.

14. It appears that his Honour had determined that s 19AC(1) of the Crimes Act 1914 (Cth) applied, which is to the effect that a sentence for a single federal offence which is for a period of imprisonment that does not exceed 3 years must not have a non-parole period, but rather a recognizance release order. However, s 19AG(1)(c) of the Crimes Act 1914 overrides that provision, by obliging a sentencing court to impose a non-parole period for offences against Div 80 of the Criminal Code, since the terrorism offence comes within Div 80. The relevant sub-sections of s 19AG are as follows:

“19AG   Non-parole periods for sentences for certain offences

(1)   This section applies if a person is convicted of one of the following offences (each of which is a minimum non-parole offence) and a court imposes a sentence for the offence:

(b)   a terrorism offence;

(c) an offence against Division 80 of the Criminal Code;

(d) an offence against subsection 91.1(1) or 91.2(1) of the Criminal Code.

Note: A sentence for a minimum non-parole offence is a federal sentence, because such an offence is a federal offence.

(2)   The court must fix a single non-parole period of at least 3/4 of:

(a)   the sentence for the minimum non-parole offence; or

(b)   if 2 or more sentences have been imposed on the person for minimum non-parole offences—the aggregate of those sentences.

The non-parole period is in respect of all federal sentences the person is to serve or complete.

… ”

15. In any event, the respondent submits, and the applicant agrees, that the sentencing judge was functus officio upon the handing down of the sentences and that the purported re-sentence was outside the jurisdiction permitted by statutory and common law principles that facilitate a correction of an order. In my view, that is correct. I disregard the further orders.

16. There are two grounds of appeal, which are as follows.

“Ground 1

The sentence imposed in respect of the [ammunition] offence was manifestly excessive.

Ground 2

The sentencing judge erred in deciding whether to make an intensive correction order directing that the sentence for the [terrorism] offence be served by way of intensive correction in the community.”

17. The respondent accepts that the first ground is made out. The sentencing judge found that the objective seriousness of the ammunition offence was “well above the mid-range for offences of their kind” and nominated a notional starting point for the sentence of 12 months’ imprisonment, which he reduced for the early plea of guilty to arrive at a sentence of 8 months. An error is apparent. The sentencing judge’s nominal starting point is the maximum penalty for the offence, which is irreconcilable with the level of objective seriousness not being in the worst category: see The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18].

17. The respondent submits that error is also disclosed in respect of the sentence imposed for the terrorism offence, since s 19AG(2) of the Crimes Act 1914 obliges a court that is imposing a sentence for an offence against Div 80 of the Crimes Act 1914 to fix a non-parole period of at least three-quarters of the sentence. The non-parole period that was imposed fell short of that ratio (74.2 per cent). In my view, this error is also established. In addition, it is submitted that the sentencing judge may have taken into account the infected sentence for the ammunition offence when fixing the sentence for the terrorism offence. In view of the non-compliance with s 19AG(2), it is unnecessary to determine whether that is so.

18. Since error is established, it is unnecessary to determine the second ground. However, the issue raised in it should be determined, since it remains relevant to this Court’s determination of whether some other sentence is warranted in law and should have been passed: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

The background to the offences

20. At the time of the terrorism offence, the applicant was single and aged 34 to 37. He is the sole child of his parents and has two siblings through an earlier relationship of his mother. In the indictment period, from March 2019 until his arrest on 23 November 2021, he was residing with his parents in a regional town of New South Wales.

21. According to agreed facts that were tendered at the sentence hearing, the applicant came to the attention of a Joint Counter-Terrorism Taskforce, consequent to his online advocacy of terrorist acts and terrorist offences, which he sought to justify with extreme right-wing ideology.

22. Following the applicant’s arrest, his electronic devices were analysed, revealing his advocacy on multiple online platforms of acts of serious violence, including the mass murder of persons of colour and of the Jewish and Islamic faiths, the assassination of certain named Australian government leaders and the lionising of right-wing perpetrators of racially-motivated mass killings. The agreed facts contain examples of text postings composed by the applicant to these effects.

23. Investigators located seven shotguns and a .22 rifle in the residence which were appropriately stored in a common area of the residence. The applicant and his father were licensed to possess the firearms. However, investigators also located, in the applicant’s bedroom, 8,312 rounds of ammunition of assorted calibres, which were not stored in the manner required by the relevant provisions of the Firearms Act. Investigators also located in the applicant’s bedroom a copy of “Mein Kampf” and a print-out of a publication of the United States Department of the Army titled “Improvised Munitions Handbook”. Its contents included instructions on how to make a 9mm pistol from a metal pipe. The applicant disputed that he owned the two publications but did not dispute where they were located and that he possessed them.

24. On the afternoon of his arrest, the applicant participated in a recorded interview by police. He described a socially isolated existence with few friends, since a car accident shortly after he left school. He explained his socio-political view of the world, which was essentially that he felt threatened, alienated and increasingly isolated by how “we’re being replaced” and “how society is going” as a result of the Australian government “and the people that pull the strings in the government”. He yearned for a “traditional” Australia, which had “changed very rapidly”, the “tipping point” being the end of the “White Australia Policy”. His main concern was “just survival”.

25. He would go online on his computer in his bedroom every night, although he would not always post comments. He estimated that at one time, on one site that he frequented, he had nearly fifteen hundred followers.

26. He said that he had “zero intention of taking any physical action against anyone because it’s not worth it”. As to the purpose of his posts, he said:

“I have zero intention of doing anything. … all my presence on the internet was about was reaching out, finding people who see the world the same as myself, for my own sanity, and just preparing to avoid disaster down the track.”

27. When confronted by some of his posts that called for the killing of people of colour, he said:

“I’m very regretful for the comments I’ve made. … some of the comments I made were too far. … I don’t want to encourage anyone to actually do anything physically. I don’t want to carry out violence.”

The sentence hearing

The Crown bundle

28. As well as the agreed facts and transcript of the police recorded interview, the Crown tendered the applicant’s criminal histories in New South Wales and Tasmania. The applicant’s criminal history in New South Wales disclosed two prior offences, both in November 2010 when he was 26 years old, of assault occasioning actual bodily harm, for which he received a bond for 12 months without proceeding to a conviction, and remaining in the vicinity of licensed premises having been excluded, for which he received a fine of $200.

29. The applicant was convicted in Tasmania in 2014 when he was 29 years old following an incident involving driving a vehicle while exceeding the prescribed alcohol limit (with a blood alcohol reading of 0.158), for which he was fined and disqualified from driving for 18 months, and failing to stop after an accident, for which a conviction was recorded with no further penalty. He was also charged at the same time with assault with indecent intent, for which he received a suspended sentence of three months' imprisonment.

The case for the applicant

A psychologist’s report

30. A report by Dr Katie Seidler, clinical and forensic psychologist, dated 10 October 2022, was tendered. Dr Seidler stated that, since completing her PhD, she has an area of research interest in terrorism. She was an honorary research fellow at the Centre for Terrorism and Security Studies, in Charles Sturt University.

31. Dr Seidler noted that the applicant was born in Australia and at the time of interview was aged 38. She related the history he provided to her. He reported having been the victim of bullying at school, commenting that this was the onset of the “unfortunate experiences” he has had with “foreigners”, which has contributed to his ideological viewpoint. Despite those difficulties, he claimed that he topped his primary school academically but was not awarded dux, “for political reasons”. He truanted increasingly in high school, which he attributed to low mood and substance abuse. He achieved his Higher School Certificate. About four years later, he commenced tertiary study in a Bachelor of Construction Management at the University of Technology, Sydney and later Newcastle University, but did not finish the degree. He completed a Diploma in Real Estate/Property through TAFE in about 2003.

32. The applicant was first employed when he was about 17 years old, in furniture removals. Thereafter, his employment was in real estate, pizza delivery, construction labouring and hospital records administration. He reported that he has not been consistently employed for various reasons, including his physical and mental health, his substance abuse and his tertiary studies, and by the time of his arrest he had been unemployed for some years, surviving on social security benefits. He suggested that his “whole life” had “gone off the rails” and he was “struggling to get by”.

33. As to his medical history, the applicant reported having been “king hit” in an unprovoked attack in about 2002. He said that his nose was broken in the assault. Although he had surgery, his sleep remained affected.

34. About six months after that assault, the applicant was involved in a major motor vehicle accident in which he fractured several vertebrae which has caused him ongoing pain, a feeling of being “unbalanced” and difficulties engaging in any exercise. He reported a number of subsequent assaults, some of which resulted in minor head trauma and loss of consciousness. He suggested that many of the assaults were perpetrated by “foreigners”.

35. The applicant reported that he does not have any friends, having lost them after his motor vehicle accident. He said that they “abandoned” him, because he claimed they could no longer “use” him to their advantage. He said that he had been very isolated and lonely, which was made worse by the Covid-19 pandemic lockdowns. Consequently, his primary connection with people in recent years had been online.

36. The applicant said that he first consumed alcohol when he was about 13 years old. From about the age of 16, his consumption increased. Binge drinking on a weekend was commonplace and, in the last few years, his use of alcohol again increased. For several years, he had been consuming approximately 15 beers per day. He consumed cannabis between the ages of 16 and 21, but only occasionally since then. He had experimented with some other drugs but denied current illicit drug use or the abuse of prescribed medications.

37. Dr Seidler questioned the applicant as to his exposure to extremist ideology. He said that he started watching YouTube videos of the 9/11 terror attacks in the years after that event and noticed comments that referred to “conspiracy theories”. He would follow the links and appeared to accept some of those theories. He spent more time at night online viewing, researching and commenting on such issues and became increasingly invested in the material he was accessing. He disclosed being exposed to large amounts of highly violent content which desensitised him to such material. He described feeling a sense of belonging and acceptance online, “especially because [he] had nothing else outside”.

38. The applicant claimed he did not support or condone terrorism in any form but agreed that he had engaged in “shitposting” about the crimes of the Christchurch mass murderer “for a laugh”.

39. In relation to the terrorism offence, he claimed it was not maliciously motivated but was rather “like a game” for him online. Dr Seidler said:

“Although [the applicant] claimed that he does not believe in violence, he acknowledged having made comments that were ‘insanely’ violent and he described these comments as ‘ridiculous’ and so much so that he struggles to believe that he made them. [The applicant] also told me that he was usually alcohol affected when he would make these comments online.”

40. The applicant conceded to Dr Seidler that he could understand now how his comments may have had the impact of inciting others to violence. However, he claimed that was not his intention and he reported to be “extremely sorry and regretful” for his actions.

41. In relation to the ammunition offence, the applicant claimed that his online activities had encouraged him to begin “stockpiling” a raft of goods in order to survive in the event of an “economic collapse”. He denied having any intention of using firearms or ammunition for any criminal activity.

42. The applicant said he had spent the majority of his time in prison under harsh and restrictive conditions. He described the adjustment to the change in diet and the extended periods of confinement as difficult.

43. Dr Seidler assessed the applicant’s level of risk of committing a violent extremist offence with the assistance of the application of a tool known as the Violent Extremism Risk Assessment tool (version 2 Revised) (VERA-2R). She concluded:

“… overall, on the basis of the VERA-2R, it is my assessment that [the applicant] poses a low risk of engaging in an act of violent extremism himself, including being directly involved in the planning, preparation or orchestration of such an act. However, his risk of engaging in less direct behaviours associated with violent extremism is higher and may be in the moderate range under certain conditions.”

44. Dr Seidler diagnosed the applicant as suffering from a persistent depressive disorder that, at times, worsens to a recurrent major depressive disorder. His personality difficulties and attitudes have become entrenched and reflect traits of a personality disorder. He has a history of cannabis use disorder which is now in remission. It was replaced by an alcohol use disorder which also is now in remission, due to him being in a controlled environment.

45. As to any relationship between the applicant’s mental health issues and his offending behaviour, Dr Seidler said that she did not believe his ill mental health caused his offending:

“However, it was certainly a contributing factor in the sense that [the applicant’s] ongoing mental health difficulties contributed to his isolation from others, to his failure to engage productively in the community, to his poor self-esteem and avoidant emotional coping resources and to his loneliness, which contributed to the applicant going online to seek solace, connection, distraction and reinforcement.”

46. Dr Seidler recommended that the applicant engage in ongoing psychological treatment.

Affidavit evidence from the applicant’s family

47. An affidavit from the applicant’s father was read at the sentence hearing. He confirmed the applicant’s account to Dr Seidler that he was bullied at school and became withdrawn, particularly in the four years before his arrest. He was unaware of the applicant’s offending behaviour until his arrest, which had left him and his wife “shocked, devastated and distraught” at his conduct. In a brief affidavit, the applicant’s mother expressed agreement with the content of his father’s affidavit.

A threat in prison

48. An affidavit by the applicant’s solicitor was read, which annexed correspondence from him to the authorities at Goulburn Correctional Centre, where the applicant was detained, bringing to their attention that he had received two distressed phone calls from the applicant, who reported that two death threats had been made against him from a fellow inmate. The solicitor requested that the applicant be moved with some urgency to a safer part of the prison complex.

Submissions by the parties to the sentencing judge

49. It is unnecessary to canvass the submissions made by the parties on sentence, other than what was submitted concerning an intensive correction order (an ICO) pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act), which provides as follows.

“7   Intensive correction orders

(1)   A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.

(2)   If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence.

(3)   This section does not apply to an offender who is under the age of 18 years.

(4) This section is subject to the provisions of Part 5.

Note— Among other matters, Part 5 provides that a single offence cannot be the subject of an intensive correction order if the imprisonment imposed exceeds 2 years, and that multiple offences cannot be the subject of an intensive correction order or orders if the imprisonment imposed exceeds 3 years.”

50. Part 5 of the CSP Act, which is titled “Sentencing procedures for intensive correction orders”, relevantly includes s 68(1), which provides as follows:

“68   Intensive correction orders not available where imprisonment exceeds limits

(1)   An intensive correction order must not be made in respect of a single offence if the duration of the term of imprisonment imposed for the offence exceeds 2 years.

…”

The application for an ICO

51. Senior counsel for the applicant at the sentence hearing, who also appeared on this application for leave, submitted to the sentencing judge that an ICO was an available option for the terrorism offence. Although s 67(1)(c) of the CSP Act precluded the making of an ICO in respect of “a terrorism offence within the meaning of the Crimes Act 1914 of the Commonwealth”, the definition of the term “terrorism offence” for the purposes of the Crimes Act1914, which is in s 3 of that Act, did not include an offence against s 80.2C of the Criminal Code. Senior counsel submitted that although s 68(1) of the CSP Act prohibits the imposition of an ICO for a single offence for which a sentence of imprisonment of more than 2 years is imposed, there is authority of this Court to the effect that periods of pre-sentence custody may be deducted from the term of the ICO to be imposed, which, pursuant to s 71(1) of the CSP Act, must commence on the date on which it is made: Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 at [61].

52. At the sentence hearing, the Crown opposed the imposition of an ICO on two bases. The first, which it described as its “primary position”, was that the objective seriousness of the offence precluded its consideration. The second basis related to the terms of s 20AB of the Crimes Act 1914, which is relevantly as follows:

“20AB   Additional sentencing alternatives

(1)   A court may pass a sentence, or make an order, in respect of a person convicted before the court in a participating State or participating Territory of a federal offence, if:

(a)   subsection (1AA) applies to the sentence or order; and

(b)   under the law of the State or Territory, a court is empowered to pass such a sentence, or make such an order, in respect of a State or Territory offender in corresponding cases; and

(c)   the first-mentioned court is:

(i)   empowered as mentioned in paragraph (b); or

(ii)   a federal court.

(1AA)   This subsection applies to a sentence or order that is:

(a)   known as any of the following:

…

(ix)   an intensive correction order;

… or

(b)   similar to a sentence or order to which paragraph (a) applies; or

(c)   prescribed for the purposes of this subsection.

(1A)   Where the law of a participating State or a participating Territory requires that before passing a sentence, or making an order, of the kind referred to in paragraph (1)(b) a court must first pass another sentence or make another order (whether or not that other sentence or other order is suspended upon the making of the first-mentioned sentence or order), then, a court is not required, before passing or making that first-mentioned sentence or order in respect of a person convicted by that court for a federal offence, to pass that other sentence or make that other order.

…

(3)   Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territory of a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1).

…

(6) Subsection (1) does not permit a court (including a federal court) to pass a sentence, or make an order, that involves detention or imprisonment, in respect of the conviction of a person before the court of a minimum non-parole offence mentioned in section 19AG.

Note: If the court sentences the person to imprisonment for the minimum non-parole offence, it must fix a non-parole period under section 19AG.”

53. The Crown submitted that, although s 20AB(1) and s 20AB(1AA) expressly provides that a court may make an ICO for a federal offence, it is excluded from consideration by s 20AB(6) of the Crimes Act 1914, since, as an offence against Div 80 of the Criminal Code, the terrorism offence was a “minimum non-parole offence” as defined in s 19AG(1)(c).

54. The applicant accepted that the terrorism offence was a “minimum non-parole offence” but submitted that when s 20AB(6) is read together with s 20AB(1A), the sentencing option of an ICO remained available to a court sentencing a person for such an offence.

The remarks on sentence

55. The sentencing judge referred to the agreed facts in an appropriately abbreviated form so as to minimise the dissemination of terrorist material. His Honour fixed the objective seriousness of the terrorism offence as being “slightly above mid-range” and the ammunition offence, as noted earlier, as being “well above the mid-range”, due to the quantity of ammunition involved.

56. His Honour canvassed Dr Seidler’s report in some detail, quoting passages at length. His Honour expressed reservations as to the applicant’s downplaying to Dr Seidler of the seriousness of his posts, concluding that section of his remarks by observing:

“52   Subject to the qualifications I have already expressed, I otherwise accept Dr Seidler’s evidence summarising your subjective circumstances.

53   You have not given sworn evidence of any remorse or contrition. Nor have you resiled from, or actively renounced, the views underpinning [the terrorism offence]. In the absence of such sworn evidence, and notwithstanding the self-serving and (at times) evasive answers given in the interview with police on 23 November 2021, I am not satisfied, on the balance of probabilities, that you are remorseful or genuinely contrite in relation to either of the offences.

54   In all of the circumstances, I regard your prospects for rehabilitation as being poor.

55   In relation to both offences, considerations of both general and specific deterrence and the need to protect the community are fully engaged.”

57. As to whether an ICO for the terrorism offence was within range or available on the construction of the relevant legislation, the sentencing judge found:

“58   In relation to [the terrorism offence], a significant proportion of the sentencing hearing was taken up with competing submissions as to whether, for that offence, any term of imprisonment could, at law, be served by means of an Intensive Corrections Order.

59   It is not necessary for me to resolve that legal issue because, in my opinion, even if an Intensive Corrections Order were available at law, and even if the sentence [was] fixed for a length of time which theoretically might make an Intensive Corrections Order an available sentencing option, your offending is of such seriousness that community safety, being the paramount consideration, could not be adequately addressed by any such term being served in the community.”

The application for leave

The applicant’s submissions

58. In relation to the sentencing judge’s reason for refusing an ICO in the passage in [59] of his remarks on sentence concerning the seriousness of the offending and community safety, extracted at [57] above, the applicant referred to Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3, which was handed down 12 days after the applicant’s sentence.

59. The applicant submitted that the sentencing judge’s reasoning, in particular, that the applicant’s “offending is of such seriousness that community safety, being the paramount consideration, could not be adequately addressed by any such term being served in the community”, was contrary to the third of the three-step process to be undertaken by a sentencing court that ultimately sentences an offender to a term of imprisonment. In Stanley, Gordon, Edelman, Steward and Gleeson JJ said:

“59   There are three steps to be undertaken by a sentencing court prior to the final order by which a sentence of imprisonment is imposed under the Sentencing Procedure Act, or confirmed or varied on a sentencing appeal: first, a determination that the threshold in s 5(1), described below, is met; secondly, determination of the appropriate term of the sentence of imprisonment; and thirdly, where the issue arises, consideration of whether or not to make an ICO. …

60   The first step requires the court to be satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The possible alternative penalties include a community correction order, a conditional release order, conviction with no other penalty and a fine. An ICO is not an alternative penalty.

61 ICOs are of a different kind – an ICO is a sentence of imprisonment (for the purposes of s 5) that is directed, under s 7, to be served by way of intensive correction in the community rather than full-time detention. …”

60. In relation to the third step, the plurality said:

“77 While aspects of community safety underpin some of the general purposes of sentencing, such as specific and general deterrence and protection of the community from the offender, those aspects will have been considered in deciding whether to impose a sentence of imprisonment (ie, before considering an ICO). Community safety is required to be considered again and in a different manner under s 66 when considering whether to make an ICO. At this third step, community safety in s 66(1) is given its principal content by s 66(2), namely, the safety of the community from harms that might result if the offender reoffends, whether while serving the term of imprisonment that has been imposed or after serving that term of imprisonment.”

61. It was submitted that the sentencing judge had failed to consider whether, as required in the third step, the community was better protected from the applicant reoffending by serving his sentence in the community rather than in a prison.

62. In my view, it is unnecessary to determine whether the sentencing judge’s approach to the issues of community safety when considering an ICO was contrary to that which is mandated in Stanley, since error has already been established.

63. The applicant’s submissions in relation to ground 2 were otherwise an elaboration of those made below. The applicant maintained that a person could be the subject of an ICO for a “minimum non-parole offence” in spite of s 20AB(6) of the Crimes Act 1914, by the following process of reasoning.

64. The applicant noted that s 7(1) of the CSP Act required a sentencing court to sentence an offender to a term of imprisonment before making an ICO. The applicant submitted that, pursuant to s 20AB(1A) of the Crimes Act 1914, a court is not required to first sentence the offender to a term of imprisonment before making an ICO. He noted that in R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522, Spigelman CJ noted that the genesis of s 20AB(1A) lay with a recommendation of the Australian Law Reform Commission (ALRC 44 at par 125). The Chief Justice said, at [23]:

“The Commission’s concern was to ensure that each sentencing option would be available for consideration on its own merits. It referred to a situation in which a community service order could only be made if the Court had found that the offender should be imprisoned. This is reflected in the terms of s20AB(1A) by the use of the word ‘requires’ with reference to ‘must first pass another sentence’, as a description of the relevant State or Territory law.”

65. The applicant submitted that, although s 20AB(6) provides that s 20AB(1) does not permit a court “to pass a sentence, or make an order, that involves detention or imprisonment” in respect of a person convicted of a minimum non-parole offence, the term “imprisonment” should be understood as referring to “actual imprisonment” to distinguish it from “something other than actual imprisonment”. Since s 20AB(1A) avoids a candidate for an ICO having to be first sentenced to a term of imprisonment, there is a pathway for a person convicted of a minimum non-parole offence to receiving an ICO.

66. The applicant advanced three reasons for the meaning of “imprisonment” in s 20AB(6) that he contended for, as follows:

“(a)   the ordinary meaning of ‘imprisonment’ is the act of putting a person in prison (or a place like a prison) and the context does not suggest that a different meaning should be given to the term;

(b)   the term is to be read eujsdem generis with the term ‘detention’, which conveys that the offender is actually detained;

(c) it is consistent with reference in s 20AB(1AA) to ‘a sentence or order’ that is ‘(a) known as . . . (iv) a community custody order’, ‘(a) known as ... (xi) a sentence of periodic detention or a periodic detention order’ or ‘(a) known as … (xii) a sentence of weekend detention or a weekend detention order’ or ‘(b) similar to’ such sentence or order (so that it is apparent that the purpose of s 20AB(6) is to ensure that such a sentence or order that ‘involves detention or imprisonment’ may not be utilized to evade the operation of s 19AG).”

67. As at the sentence hearing, the applicant submitted that the approach taken by this Court in Mandranis would permit the Court on re-sentence to make an ICO even though a backdated sentence would exceed 2 years.

The respondent’s submissions

68. The respondent submitted that s 20AB(6) and the note following it are in clear terms, and noted that ss 20AB(6) and 19AG were introduced by the Anti-Terrorism Bill 2004 (Cth). The Supplementary Explanatory Memorandum to the Bill explained the rationale for introducing s 20AB(6) and that it was intended to ensure that the sentencing alternatives made available by s 20AB(1) were not available for a person before the court of a minimum non-parole offence:

“Proposed subsection 20AB(6) stipulates that subsection 20AB(1) of the Crimes Act 1914 does not permit a court to pass a sentence or make an order, that involves detention or imprisonment, in respect of the conviction of a person before the court of a minimum non-parole offence mentioned in proposed section 19AG.

Subsection 20AB(1) currently enables a court to impose on federal offenders a sentence or order where that court could, under the law of the participating State, make such sentence or order. Such sentences or orders can be made to the extent that relevant State law are not inconsistent with Commonwealth legislation …

Proposed section 20AB(6) will ensure that a person sentenced to serve detention in custody or imprisonment cannot be ordered to serve that sentence of imprisonment or detention by way of the additional sentencing alternatives under section 20AB(1) of the Crimes Act 1914.”

Consideration

69. In my view, the ordinary meaning of s 20AB(6) of the Crimes Act 1914 is that a court that is sentencing a person for a minimum non-parole offence, as defined in s 19AG, cannot make an order of a type identified in s 20AB(1AA) if, in order to do so, it first determines that a sentence of detention or imprisonment is the appropriate sentence.

70. I am fortified in my understanding as to the meaning of the subsection by the explanation in the Supplementary Explanatory Memorandum to the Bill, which I take into account pursuant to ss 15AB(1)(a) and (2)(e) of the Acts Interpretation Act 1901 (Cth). The reasoning advanced by the applicant to the effect that the term “imprisonment” means “actual” imprisonment to distinguish it from “something other than actual imprisonment”, is artificial and contrary to the ordinary meaning of the word, its context and the objective of the subsection.

A lesser sentence is warranted

71. I consider that a lesser sentence is appropriate. As is apparent from the resentencing exercise, in the end result it transpires to be only slightly so.

Resentence

72. I agree with the findings made by the sentencing judge as to the objective seriousness of the offences. I accept the opinion of Dr Seidler, extracted at [45] above, that the applicant’s mental health issues led to the applicant “going online to seek solace, connection, distraction and reinforcement” and in that sense it was a contributing factor to the commission of the offence, but I note that it does not explain why he chose to overcome those issues of isolation and loneliness in that particular fashion. Rather, his terrorist online activities appear to be a development from a long-standing resentment towards people he perceives to be different to him and who somehow constitute a threat to his well-being for that reason.

73. The fact that the applicant states that he made his postings under the influence of alcohol does not mitigate his offending behaviour (CSP Act, s 21A(5AA)). The offending was carried out over a period of 31 months, which bespeaks a determination and on-going commitment to engage in that behaviour, which only ceased with the intervention of the joint terrorism task force. There is evidence of regret by the applicant for committing the offences, but in my view, not of remorse. I also take into account the level of risk of the applicant committing a like offence, as assessed by Dr Seidler.

74. In favour of the applicant, he has the benefit of his early pleas of guilty to both offences. He has the support of his family, which, together with therapy, is likely to be central to his prospects of rehabilitation and overcoming his deep social isolation.

75. In relation to the terrorism offence, I would impose a sentence of 2 years and 4 months, backdated to commence on 23 November 2021. I would impose a non-parole period of 1 year and 9 months, which will expire on 22 August 2023. The balance of term of 7 months will expire on 22 March 2024. I note the ratio of the non-parole period to the total sentence is 75 per cent, consistently with the minimum ratio for an offence against Div 80 of the Criminal Code: see s 19AG(1)(c) and (2) of the Crimes Act 1914.

76. In relation to the ammunition offence, taking into account the discount of 25 per cent for the applicant’s early plea of guilty, I would impose a fixed-term sentence of 5 months’ imprisonment, backdated to commence on 23 November 2021, so that it was served entirely concurrently with the sentence for the terrorism offence.

77. I propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the sentences imposed in the District Court by Colefax SC DCJ on 3 February 2023.

4. Resentence the applicant as follows:

   1. For the terrorism offence, impose a term of imprisonment of 2 years and 4 months, backdated to commence on 23 November 2021 and to expire on 22 March 2024, with a non-parole period of 1 year and 9 months, to expire on 22 August 2023.

   2. For the ammunition offence, impose a fixed-term sentence of imprisonment of 5 months, backdated to commence on 23 November 2021 and to expire on 22 April 2022.

   78. CAVANAGH J: I agree with the orders proposed by Ierace J for the reasons set out in his Honour’s judgment. I would only add this.

   79. Error having been conceded, the issue which arises on this appeal is whether, on resentence, the Court may order that the applicant serve any sentence by way of an ICO, as the applicant contends.

   80. As submitted by the Crown, s 20AB(1) and s 20AB(1AA) of the Crimes Act 1914 (Cth) permit the Court to make an ICO for a federal offence but those provisions are subject to the exception in s 20AB(6). That is, provided that the sentence or order involves detention or imprisonment, then s 20AB(1) does not apply in respect of the conviction of a person of a minimum non-parole offence mentioned in s 19AG.

   81. There is no dispute that the offence of which the applicant has been convicted is such an offence. The applicant’s contention that the Court could still make an ICO is based on the proposition that an order that the sentence be served by way of intensive correction in the community is not an order that involves detention or imprisonment.

   82. Subsections 7(1) and (2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”) are in the following terms:

   “Intensive correction orders

   (1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.

   (2)  If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence.”

   83. It is clear that the discretion of the Court to make an ICO directing that the sentence be served by way of intensive correction in the community only arises when the Court has sentenced the offender to imprisonment in respect of one or more offences.

   84. Further, as set out in s 7(2), if the Court makes an ICO, it must not set a non-parole period.

   85. The difficulty for the applicant is that the power to make an ICO only arises when a Court has sentenced an offender to imprisonment in respect of an offence. All the Court is then doing is directing that the term of imprisonment is served by way of intensive correction in the community. As such, the sentence involves imprisonment in accordance with the meaning of the term used in s 7 of the CSP Act.

   86. Contrary to the applicant’s submissions, there is no scope for giving the phrase “detention or imprisonment” in s 20AB(6) some type of restricted meaning, whereby imprisonment is limited to “actual” or custodial imprisonment.

   87. Before making an ICO, the sentencing Court is required to sentence the offender to a term of imprisonment. As the offence of which the applicant was convicted was a minimum non-parole offence and it is necessary to first sentence an offender to imprisonment prior to making an ICO, then in the circumstances, s 20AB(6) precludes the sentencing court from making an order of the type referred to in s 20AB(1AA), that is, an ICO.

   88. As such, I agree with the resentencing undertaken by Ierace J and the orders which his Honour proposes.

**********

Decision last updated: 30 June 2023