R (Cth) v Jakovac

Case •

[2022] NSWDC 579

•

25 July 2022

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R (Cth) v Jakovac [2022] NSWDC 579
Hearing dates: 4 & 5 July 2022
Date of orders: 25 July 2022
Decision date: 25 July 2022
Jurisdiction:Criminal
Before: Buscombe DCJ
Decision:

Convicted of the offence of advocating the doing of a terrorist act or commission of a terrorism offence.

Impose a sentence of 1 year and 6 months imprisonment, consisting of a non-parole period of 1 year and 2 months. The sentence commenced on 9 December 2020 and expired on 8 June 2022. The non-parole period expired on 8 February 2022.

Catchwords:

CRIME – Terrorism offences – Intentionally advocate the doing of a terrorist act

SENTENCING – Relevant factors on sentence – Moral culpability

SENTENCING – Subjective considerations on sentence – Age of offender

Legislation Cited:

Criminal Code Act 1995 (Cth), s 80.2C(1), s 80.2C(2)

Crimes Act 1914 (Cth), s 16A, s16A(2)(m), s 17A

Cases Cited:

Bugmy v The Queen [2013] HCA 37 249 CLR 571

Bullock v R [2016] NSWCCA 131

BP v R [2010] NSWCCA 159

DPP v De La Rosa [2010] NSWCCA 194

Kaurasi v R (Cth) [2020] NSWCCA 253

R v Millwood [2012] NSWCCA 2

The Queen v Dakkak [2020] NSWSC 1806

The Queen v Taleb (No 5) [2019] NSWSC 720

The Queen v Uweinat [2021] NSWSC 1256

Category:Sentence
Parties: Commonwealth Director of Public Prosecutions (Crown)
Tyler Jakovac (Offender)
Representation:

Counsel:

Mr R Ranken (Crown)

Mr T Quilter (Offender)
File Number(s): 2020/00349632

SENTENCE

Introduction

  1. The offender Tyler Jakovac is to be sentenced having pleaded guilty to an offence that between 16 January 2020 and 8 December 2020 he did intentionally advocate the doing of a terrorist act or the commission of a terrorism offence referred to in s 80.2C(2) of the Commonwealth’s Criminal Code being reckless as to whether another person would engage in a terrorist act or commit a terrorism offence referred to in that provision of the Criminal Code. That is an offence under s 80.2C(1) of the Criminal Code and has a maximum penalty of five years imprisonment and/or a fine equivalent to 300 penalty units. The offender is to be sentenced pursuant to Pt 1B of the Commonwealth Crime Act and in particular s 16A. Section 16A sets out a number of matters which the Court must take into account when imposing sentence insofar as they are relevant and known to the Court.

Nature and circumstances of the offence

  1. One matter to be taken into account is the nature and circumstances of the offence which are essentially contained within a very lengthy statement of agreed facts. The following is taken from the agreed facts which run to some 99 paragraphs. There was also tendered by the Crown extracts from the transcript of the interview conducted with the offender on 9 December 2020. The offender’s counsel also tendered before me extracts from the actual recording of that record of interview and I will say something about those extracts later in these remarks.

  2. The offence was committed online using the Telegram encrypted messaging platform. On 16 October 2019 the offender created a Telegram channel @nsww1488, part of which is a white supremacist numerical symbol, which he used to post material. As at that date the offender was 17 years of age. The offender modified the public name of the channel to European Brotherhood. Between 16 October 2019 and 3 October 2020, the content posted on the channel was publicly available to all other users of the Telegram messaging platform. On 3 October 2020, the offender changed the settings to private which meant only subscribers authorised by the offender could view the content. At the time of the offender’s arrest, the channel listed 434 subscribers. Only the channel administrator, being the offender, could post to the Telegram channel.

  3. On 8 January 2020, the offender created a Telegram chat group titled EB Chatroom, that was linked to the European Brotherhood channel. Subscribers to the channel could make comments on the chat group. At the time of the offender’s arrest the chat group listed 117 members. The offender used the name Slavko Konovalenko to post in the EB Chatroom. The profile picture associated with the offender’s Telegram account was a picture of the offender holding a large hunting knife and wearing a half skull balaclava which concealed his identity. A black sun symbol was also visible on the chest of the offender’s clothing.

  4. The offender was also the owner of the VK account Tyler Konovalenko with the user name Konovalenko 35. VK is a Russian online social media and social networking service which is available in multiple languages and currently is said to have at least 500 million accounts. The profile image associated with the VK account depicts the offender wearing a half skull face mask and a black sun symbol on his chest and holding a photograph of the perpetrator of the attacks at the Al Noor and Linwood Mosques in Christchurch New Zealand in 2019 which will be referred to as the Christchurch terror attacks in these remarks. There is frequent reference to that man’s name in the agreed facts. I will not refer to him by name in these remarks, but simply as the Christchurch mass murderer.

  5. At 10.59pm on 16 January 2020, the offender posted an image of the Christchurch mass murderer dressed as an Australian soldier with the comments, “This man is your friend, Australian, he fights for freedom”. At about 11.02pm on 16 January 2020, the offender replied to a user named Uhro on EB chatroom, “Us Europeans need to fight the Jewish pigs and immigrants to get our land back” and “Brother you know of Atomwaffen”. The so-called Attomwaffen division is a Neo-Nazi group founded in the United States in 2015. It advocates the use of violence to initiate race war, to celebrate the collapse of western society and establish a white ethno state. Between 11.07pm and 11.14pm on 16 January 2020, on EB chatroom the offender described himself as a national socialist but not a Nazi. The offender stated that a Nazi is a more extreme type of national socialist. Later in the conversation the offender agreed that defending the white race was a priority over any particular political ideology. The offender stated that the white race was “stronger together for the time being” and then remarked “for 2020 there should be a reddit post saying all whites storm Israel, they can’t stop all of us”.

  6. At 5.19am on 17 January 2020 the offender forwarded a video and posted it in the EB chatroom. The video depicted the Christchurch mass murderer shooting various victims in the Christchurch terror attacks. The caption to the video from the original source was “learn from the heroes”. At 11.35pm on the same day the offender posted a further edited video of the Christchurch terror attacks, a victim in the massacre is clearly visible and is subsequently murdered in the footage.

  7. At 8.21am on 5 February 2020, the offender posted to the EB chatroom “Before I die and I’m 80 I’m doing a mass shooting in Israel”. This post was viewed 103 times.

  8. At 10.43 on 12 February 2020 in response to another user posting, “They” - a reference to Muslims - “always fantasise killing Jews.” In the EB chatroom the offender posted, “It’s so beautiful” and “So I see them” Muslims “as a potential ally if needed”.

  9. At 8.11am on 25 February, the offender forwarded a post from Telegram user White World Union of National Socialism to the EB chatroom. The video depicted persons of African American descent being assaulted, humiliated and murdered in the streets during what appeared to be historic race riots, demonstrations and lynchings. A song with the lyrics “Run nigger run” is played in the background for the duration of the video. After forwarding the video the offender posted the following comment to the EB chatroom:

“Run nigger run your time is up nigger, white men had enough of you and world Jewry isn’t going to last any longer, the white nations of the world are going to drive you out of our lands and deal with you once and for all, spear chucking, gibs sucking, porch monkey and greasy smelling niggers.”

  1. At 11.12pm on 3 March 2020 the offender posted a link to the EB chatroom to the manifesto of a man whom I will simply refer to as the Oslo mass murderer, setting out his extremist ideology. On 22 July 2011 that man detonated a van bomb in Oslo killing eight people and then murdered a further 69 people on a Workers Youth League summer camp on the Island of Utoya; he was motivated by an extremist far right-wing ideology.

  2. At 5.08am on 16 March 2020 the offender forwarded a 21 minute audio file to the EB chatroom. The offender posted the words, “Pass the aux-cord nigga” at the time of posting the video. The audio file consisted of military marching music, the cover photo shows a screenshot of the Christchurch terror attacks, a sonnenrad, a symbol used by Nazi Germany, and the words “Kebab equals removed”; “towards a new society”; and “we march ever forwards”.

  3. At 5.12am on 16 March 2020 the offender posted a three minute and 14 second video to the European Brotherhood channel. The video was a series of photos and screenshots in a homage to the Christchurch mass murderer and the Christchurch terror attacks. The offender made a comment using the Russian language which translated to “good wound”.

  4. At 5.25am on 16 March 2020 the offender posted a 16 minute and 55 second video to the European Brotherhood channel which originated from the Telegram channel Hans Right Wing Terrorist Centre. The video depicted the live stream of the Christchurch Terrorist attacks being footage taken by the perpetrator’s own camera as he committed the massacre. The offender stated underneath the post, “Full live stream of Christchurch Mosque shooting”. The offender also provided a list of highlights including, “literally killing everyone in the mosque while playing an SS march” and “shooting Muslims as he leaves”.

  5. At 5.30pm on 16 March 2020, the offender posted a two hour and 16 minute video to the European Brotherhood channel which originated from the Telegram channel Right Wing Book Club. The offender stated, “In honour of saint day here’s the great replacement audio book by Chucke 2009 Enjoy lads!”. The saint was said to be the Christchurch mass murderer. The video was of an unknown male reading the Christchurch mass murderer’s manifesto, The Great Replacement, to an online audience.

  6. At 6.19am on 24 March 2020, the offender uploaded a four minute and 27 second video to the European Brotherhood channel which originated from the Telegram channel Pure Hate. The offender commented “Demoralising enemy from within by a surprise terror sabotage assassination, this is the war of the future” with a reference to Adolf Hitler. The video shows CCTV footage and newsclips relating to the Oslo mass murderer, the Christchurch mass murderer and another murderer who I do not propose to name.

  7. At 12.41am on 26 March 2020, the offender forwarded a copy of the manifesto of the Christchurch mass murderer ,The Great Replacement, to the EB chatroom. At 10.59pm on 17 April 2020 the offender forwarded a two‑minute and 42 second video to the EB chatroom which originated from Telegram channel Terror Wave Refined. The video showed two handcuffed male victims of Middle Eastern appearance detained by people motivated by ideologically violent extremism purporting to be Russian national socialists. The victims were videoed as captives in front of a Nazi flag; the victims were then decapitated and their bodies displayed.

  8. At 10.46am on 18 April 2020, on Telegram Channel ‘EB chatroom’ the offender posted anti-Muslim statements: “Most Muslims today are degenerate and deserve death, hang them upside down and cut their throats and let them bleed out then feed them to the dogs”.

  9. At 12.17pm on 22 April 2020, the offender posted a video tribute to the “European Brotherhood” of Adolf Hitler with the words, “Happy Birthday to our one and only Adolf Hitler, his work and sacrifice are examples for us to follow. Sieg Heil and Heil Hitler”.

  10. At 6pm on 24 April 2020, the offender forwarded a one minute and five second video to the European Brotherhood channel from the user The Bowlcast, depicting as saints the Oslo mass murderer, the man I will simply refer to as the Oklahoma City mass murderer, the Christchurch mass murderer and three other murderers. The offender also posted the words, “Heil the saints, never forget what they sacrificed for us”.

  11. At 3.06pm on 25 May 2020 the offender posted an image to the European Brotherhood channel forwarded from the user Holy War. The image depicted men of African American descent in uniforms during a rally. The offender posted “Race war get ready”.

  12. At 8.08pm on 29 May 2020 the offender posted an audio file to the EB chatroom titled, “Mike David kill all the gays”. The audio file is a rap-style song advocating violence against homosexuals and Jewish people. The song’s duration is three minutes 32 seconds.

  13. At 6.04am on 3 June 2020, on Telegram channel “EB chatroom”, the offender uploaded an image forwarded from the user Terror Wave Refined, stating “race war” nine times. At 8.41am on 3 June 2020 on EB chatroom the offender posted a video of a Jewish male being involved in an altercation in a store. The offender wrote a comment on the video stating, “Gas the kikes! Race war now!”. This video lasted for two minutes and nine seconds.

  14. At about 10.19am on 9 June 2020, the offender posted a video on the EB chatroom urging people to oppose immigration and to fight to take back their land. The offender stated, “Fight for your white future, fight for your white lands, fight for your white nation, fight for your white neighbours, fight for your white families, Europe be white! Rahowa is coming”.

  15. At 8.18am on 12 June 2020, the offender posted in European Brotherhood a video of the Christchurch Terror Attacks, forwarded from the channel Parasite Removal Force. The video is an unedited version and depicts a number of violent murders from those attacks. The video is from the perpetrator’s head camera and was widely circulated online at the time of the massacre, the duration of the video is approximately 17 minutes.

  16. At 6.28pm on 13 June 2020, on Telegram channel “European Brotherhood”, the offender posted an image of a male with white skin and a female with dark skin. Underneath the image, the offender posted “Stomp her monkey head in, Animalistic facial features most of them have”.

  17. At 7.40am on 15 June 2020, the offender posted a picture of the Christchurch mass murderer dressed as an Australian solider and an image of that perpetrator dressed in camouflage with a half skull mask and a rifle.

  18. At 12.08am on 17 June 2020, on the “EB chatroom” the offender discussed with another user referred to as G about the history of Jewish people. In one post the offender stated, “Their only history is fucking up other countries and getting behind everything. They stole Israel, it’s not native to them. They need to be exterminated, every woman, child, baby and Jew, everyone”.

  19. At 2.49am on 17 June 2020, the offender forwarded a post on the EB chatroom from channel Union 88GasCo which stated:

“Eat shit, if you take your rifle out of your house to a protest and are not prepared to empty every mag you have into a crowd of niggers and their pet cops then what the fuck are you doing leaving your house with it. That’s right, being a faggot. Don’t be a faggot, stay home. If you decide to leave the house and go to one of these protests don’t go home without emptying your mags, don’t go home without stacking bodies, don’t go home. Kill everything you see, it’s either that or spend the next couple of years in prison because you thought it would be cool to flex with your guns in public. If you’re gunna end up in prison make it worth it, kill some niggers.”

  1. At 3.16am on 17 June 2020 the offender entered into a discussion on the EB chatroom with someone referred to as Alexander Shepherd, about people of Caucasian descent taking back their lands by violence. During the conversation, the offender stated that “Multiculturalism is the worst ever” and “Soon we will take our land brother, soon”. The offender emphasised the importance of race and stated that he would provide Alexander Shepherd a copy of the manifesto of the Christchurch mass murderer.

  2. At 11.35pm on 20 June 2020 the offender posted a set of rules for joining his European Brotherhood channel. The offender stated:

“Welcome new members. Rules: (1) Be white European Heritage (2) Don’t be a shit skin or Jew (3) Be based and red-pilled, right wing (4) Enjoy fellas.”

  1. At 1.31am on 23 June 2020 the offender forwarded a video from “Swag Swag” to the European Brotherhood telegram channel. The video portrays a video game version of the Christchurch terror attacks. It depicts the massacre in a first-person shooter format. The offender posted the word “gaming” underneath the video.

  2. On 24 June 2020 the offender recorded a Snapchat video which appeared to have been posted to his account. The image depicts the offender’s wardrobe with his military-style plate carrier and Camelbak brand backpack in clear view. The offender’s first name, “Tyler” is visible in a picture‑frame under the plate carrier with a copy of the book, “Siege”, the collected writings of James Mason, an American neo-Nazi; and a Croatian flag. The offender wrote across the image the words,

“The shooting will take place on 3 of July, make sure to DM me for my Facebook for the livestream guys, I’m sick of your niggers and Jews and faggots and race mixes.”

  1. The offender forwarded a video from Telegram channel, “Bellum Acta Intel Urgent News and Archives” to the European Brotherhood channel. The video depicts a male committing a mass shooting at the Westgate Entertainment District Shopping Centre in Glendale, Arizona, in the United States in May 2020. Three people were shot, however all survived.

  2. At 3pm on 5 July 2020, the offender posted a PDF and audio book of, The Manifesto of the Christchurch Mass Murderer, called “The Great Replacement”.

  3. At 5.55pm on 9 July 2020, in the EB chatroom the offender sought instructional tutorials to make a bomb stating,

“If anyone knows how to make a bomb or any type DM me, I need things again, I lost my old info.”

And, “Someone DM me some new tutorials.”.

  1. At 6.30pm on 9 July 2020, in the EB chatroom, Telegram user, Alexander Shepherd, replied specifically to the post made by the offender stating, “Check your DM.”.

  2. At 10.48pm on 17 July 2020, the offender shared his admiration of the Christchurch mass murderer on the EB chatroom with the user “Tony Bro”. During this conversation they spoke about how many victims the perpetrator murdered and the offender replied, the perpetrator, “Is a god in our eyes, he stood for what we believed in.” And, “never forget his sacrifice.”.

  3. At 10.24am on 28 July 2020, on the EB chatroom, the offender entered into a conversation with users “Dimitri” and one referred to as “G” about the Christchurch mass murderer and his actions. At 10.27am on 28 July 2020, on the EB chatroom, user “G” stated, “Exactly, some are just wasting their lives on random people getting locked up.”. The offender replied,

“I still support them, even it’d be civilians (sic) that sounds fucked, but hey it’s sand-niggers or blacks. But, yes high profile enemies.”

  1. At 10.29am on 28 July 2020, the offender posted on the EB chatroom that he liked the Christchurch mass murderer because he, “Radicalised a lot of whites.”, and, “Changed the political world forever.”. Later that day at 4.21pm, the offender posted a passage from that perpetrator’s manifesto.

  2. At 2.04am on 10 August 2020, the offender posted a picture which labelled the Christchurch mass murderer as “a saint” to the Telegram channel European Brotherhood with the words, “Fuel your faith with total fucking hate Slavko”. The image also includes a direct quote from the Christchurch mass murderers manifesto stating, “If not now then when? If not me then who?”.

  1. At 12.04am on 12 August 2020, the offender forwarded to the Telegram channel, European Brotherhood a post which stated,

“Terrible news from Australia, the 24th of August this year [there was then a reference to the Christchurch mass murderer] our white hero of our idea, an example of courage and determination will be executed. My message to you is to diffuse a message to solidarity to our comrade and leader from all over the world, hailing him and his crusade against our enemies with banners, graffities, urban art and whatever. Share this message and send us your pics with your messages which we will public. Let’s show him and show the world that heroes never die and that we will always remember him. Hail [the Christchurch mass murderer], heil Hitler, white power.”

  1. At 12.04am on 12 August 2020, on the EB chatroom the offender posted, “We all need to be a”, then there is a reference to the Christchurch mass murderer.

  2. At 12.24 am on 12 August 2020, on the EB chatroom, the offender posted,

“Desensitise yourself to violence - niggers and non-whites deserve utter fucking death, behead them, and send their corpse to their families. No fucking mercy, they want to destroy us so we will destroy them.”

  1. At 2.46pm on 12 August 2020, on the EB chatroom another user referred to as “Tony Bro”, posted

“Personally I believe the lone wolf strategy or the mass propaganda and awakening of the people are the best options, but I’m not the sharpest tool in the shed so IDK. [presumably “I don’t know”]”

  1. The offender responded to Tony Bro stating,

“I agree with that, it’s also efficient. One man can take out forty invaders and some important leaders, if two soldiers of the white race - does an attack in various areas they could potentially take out one thousand invaders or even a leader. I do see some good stuff with the lone wolf.”

  1. At 2.19am on 14 August 2020, the offender engaged with another user referred to as “Li Tsubasa”, on EB chatroom in relation to contemporary politics. The offender stated,

“In my opinion there isn’t a political solution to me, I think we just need to take back our lands by force. I have total hate, I think hate is important.”

  1. At 10.33pm on 14 August 2020, the offender posted a thank-you to the subscribers of Telegram channel European Brotherhood, the offender stated,

“I just wanted to say thank you to all the 156 subscribers to this channel, it really means lots to me, I know I’m not that big and I have 2000 subs or 1000 or 5000, and so on, but I have 156 living, breathing souls subscribed to me so thank you, all legends. Always be proud of who you are and love your race, people and culture. Don’t let them take our pride, and strive for taking back our lands away. Stay based lads.”

  1. At 12.21am on 15 August 2020, on the EB chatroom, the user “Herr Hauptmann” posted in relation to the Oslo mass murderer that,

“If white people betray their own race they need to be executed no matter what.”

  1. The offender replied,

“I agree, they were the children of tomorrow, they would have been the kids who have voted for multiculturalism, he cleansed them. Heil [A reference to the Oslo mass murderer], they are traitors.”

  1. The offender then posted an image of the perpetrator doing the Nazi salute.

  2. At 12.37am on 15 August 2020, the offender posted to the EB chatroom “Niggers should all be liquidated.”. On 15 August 2020, the offender took a screenshot of a partial message exchange between himself and an unknown person, using the online persona “Jangles the Moon Monkey”. This conversation appears to take place on a group chat called, “Sons of the Southern Cross” and the words, “Niggers stomp on them” written underneath. The offender and Jangles the Moon Monkey discussed attacking Somalians in the Albury area.

  3. At 2.01am on 16 August 2020 the offender posted to the EB chatroom,

“I had a good plan to start some tip [which has been interpreted in the FACTS as ‘something’], “up but it needs at least five years of planning.”

  1. At 2.21am on 16 August 2020 the offender posted to the EB chatroom,

“It will be a war of the races, the strongest race wins, that’s why I work out every day to be as ready as possible bc [presumably ‘because’] it’s happening, riots everywhere in 2020, it’s going to get worse.”

  1. At 5.07am on 16 August 2020 the offender posted to the EB chatroom,

“Blacks should go extinct, if we one day revolt and fight back, or should I say when?”

  1. At 5.42am on 17 August 2020 the offender posted on the EB chatroom,

“I have my group, find your local group, prepare for terror, store and stack weapons and learn makeshift bombs too, I have manual and stuff, DM if you want them.”

  1. At 6.05am on 17 August 2020, the offender posted a video to the Telegram channel EB chatroom advocating the preparation for a race war. The offender wrote below the video,

“Prepare, prepare, prepare, organise yourself and educate. Learn how to make weapons, survival skills, gain the extra point against your enemies, become smarter. Learn how to fight and get strong, turn your anger in hate and use your anger to get stronger. Organise yourself and prepare. Prepare, prepare, prepare. Make groups.”

  1. At 6.06am on 17 August 2020, the offender posted a poll to the EB chatroom, asking users to vote on, “What is the worst type of people?”. Users were presented with a number of options such as “Niggers”, “Jews” and “Asians”.

  2. At 8.01am on 20 August 2020 the accused posted a poll on European Brotherhood asking voters, “What’s your ethnic background”. The offender included a number of options including, “Monkey Floyd, poo, shit, nigger skin African” and, “Big shekel sniffing nose tribe, (Jew)”.

  3. On 21 August 2020, the Australian Federal Police obtained a telephone intercept warrant and two surveillance devices warrants in relation to the offender. The offender was subject to surveillance in accordance with those warrants from 21 August 2020 until the date of his arrest. At 9.40pm on 27 August 2020, the offender posted a video of the Christchurch mass murderer on the EB chatroom, during that persons sentencing hearing. The offender wrote a tribute to that perpetrator stating, “I want to take the opportunity to thank Saint”, and then the name of the perpetrator, “personally for sacrificing everything for our people. The motivation he inspires is truly magical. He has more disciples than any Saint for good reason. A true hero, martyr and warrior who showed the world what one man with courage and willpower can achieve”. The offender also posted a direct quote from that perpetrator’s manifesto followed by “Hail Saint”, followed by reference to the name of the Christchurch mass murderer.

  4. At 10.28pm on the 1 September 2020, on the Telegram channel the European Brotherhood the offender posted a PDF copy of the book ‘Siege: The Collected Writings of James Mason’, whom I referred to earlier.

  5. At 8.05am on 6 September 2020, the offender posted an image on the European Brotherhood channel of the group of males in military uniform holding firearms and kneeling for a group photograph in a field. The words “FORM A GANG” were written across the image. The image was forwarded by the offender from the Telegram channel “The Slavic Shepherds Diary”. The offender wrote at the bottom of the image, “If you are well trained and organised, you can make a difference against the system. You will be their pain in the arse even if you are not large in number”.

  6. At 9.15am on 7 September 2020, the accused posted on the EB chatroom that he is “Trying to red pill” someone in SC being a reference to Snapchat. The concept of red pilling is a term used by right‑wing extremists to refer to the process of awakening of the world order. It is derived, according to the Agreed Facts, from the 1999 film The Matrix. At 2.46pm on 10 September 2020, the offender posted an image forwarded from the Telegram channel European Brotherhood to the EB chatroom of a text message exchange which stated, “Why don’t you have a GF” a reference to girlfriend and “You look good”. The reply was, “I’m a terrorist”. Underneath the image the accused wrote, “Majority of us”.

  7. At 1.24am on Friday 11 September 2020, Telegram user Fabio posted to the EB chatroom links to download: ‘The Anarchist Cookbook’ and ‘Homemade C-4’.

  8. At 9.09am on 11 September 2020, the Telegram user Fabio posted a series of publications to the EB chatroom relating to the Great Replacement, the manifesto of the Christchurch mass murderer and other instructional publications relating to explosives and killing, into the offender’s Telegram channel. The publications were Ragnar’s Big Book of Homemade Weapons: Building and Keeping your Arsenal Secure, the Great Replacement, Backyard Rocketry, the Poor Man’s RPG, the Death Dealer’s Manual and How to Kill Tanks.

  9. At 10.32am on 16 September 2020, the offender posted a video on the EB chatroom which shows a crowd of people waving rainbow flags, and firearms shooting imposed over the top indicating shooting into the crowd. At 5.20pm on 24 September 2020, on the European Brotherhood channel, the offender posted “Suggesting that now is the right time to fight back and start taking action”. The offender stated, “If anything, it’s the perfect time for nationalists in white countries to fight back now. At least in my opinion it’s the best to take action, we have the BLM and Corona that the Government is distracted by, et cetera. Plus they keep filling our lands in daily, monthly and yearly. We become smaller day by day but grow in strength, we should start taking action”.

  10. At 7.18am on 26 September 2020, the offender posted to the EB chatrooms stating that he was getting a new dog. The offender stated “I’m going to teach it how to kill blacks maybe”. At 10.42pm on 3 October 2020, the offender posted a screenshot from a 4chan post, which warned against joining an organisational group as it increased the chance of being infiltrated by law enforcement or an intelligence agency. It stated, “Don’t join anything but act alone. Pick a random target, destroy it, tell nobody here, before, during, or after. Be a faceless action. Rinse, repeat until it all falls down”.

  11. In terms of events leading up to the offender’s arrest, the Agreed Facts has the following. The offender is the owner of a Snapchat social media account with the username Slavko, which displays Russian, Croatian and Swedish flag emojis. On 29 October 2020, an online covert operative engaged with the offender on the social media platform Snapchat, in accordance with a major controlled operation authority. During their conversation, they discussed the NSN, the National Socialist Network, which describes itself as a revolutionary movement fighting for a white Australia.

  12. The offender explained that he wished he never left the NSN and would re‑join if he was not going to Russia. The operative stated that he thought one of the users on the EB chatroom was going to shoot up a mosque when he was showed photos of the Christchurch mass murderer’s guns, and the offender replied, “Oh I didn’t see him, oh fuck is he crazy? That’s good, more people like him. I meant if I did a shooting, I’d aim for political leaders this time such as Merkel and/or anyone who promotes such things against us”. The offender then stated, “But bro, I won’t do such a thing, I was just saying if I was, I had a mistake for words”.

  13. The offender then sent an image depicting the Turkish flag and a person implied to be of Turkish descent turning into a cockroach and another person holding a firearm in front of a Turkish flag. The offender also sent a video of the Christchurch massacre attacks. The video showed the perpetrator shooting multiple victims at close range inside the mosque and the bodies of the victims. The video was approximately 20 seconds in length.

  14. On the same day, 29 October 2020, the offender sent images to the operative via Snapchat of weapons and military paraphernalia that appeared to have been forwarded from another source as well as images from inside his room, his plate carrier with a black sun patch, the picture of the Christchurch mass murderer he had on his wall, and Nazi memorabilia. The offender captured the image “Our time comes closer day by day”.

  15. On 1 November 2020, the offender posted the following message to the European Brotherhood Telegram channel, “I won’t be active for the next year. I have many shifts at work and I am studying every single day, along with exercise too, trying to become a better man. I decided to delete most social media for the time being, but I will return to this channel and repost my things once again, right now I just need time and relaxation. I’m going to Russia and Ukraine within the next few months hopefully for studying, therefore I need time. God speed, legends and stay based”.

  16. Following that post until his arrest on 9 December 2020, the offender did not post any other material to the European Brotherhood Telegram channel. Another administrator continued to post material to that channel and the subscribers continued to use the EB chatroom. However, on 29 November 2020, the offender posted one post to the Telegram chatroom in response to an earlier violent video post, stating, “No gore bro, it’s okay, though it’s okay”.

  17. On 7 December 2020, the offender posted to his Snapchat an image of himself wearing dark clothing and a balaclava with his finger in the air. The words, “I’m actually going to commit a massive national tragedy”, were written across the image. At about 4.00am on 9 December 2020, the offender posted to his Snapchat an image of himself, which depicted his own body with the animated head of an American Neo‑Nazi mass murderer wearing sunglasses. The words “I’m”, a reference to the name of that person, “And I am coming to your local church”, were written across the image.

  18. At about 7.30am on 9 December 2020, police executed a search warrant at the offender’s home and the offender was arrested. His mother assisted police with enquiries. During the search warrant, the following items were located. A portrait of the Christchurch mass murderer depicted as a saint on the offender’s bedroom wall; Military paraphernalia and equipment such as a ballistic plate carrier, a vest which holds ballistic plates designed to stop bullets, several gas masks, a hazmat suit, a hunting knife, military epaulettes, camouflaged clips, phone cut outs for a ballistic vest, military style clothing, four bullets, assorted military and survival equipment, a large Nazi flag, a swastika armband, a sonnenrad and embroidered patch, various right‑wing stickers and a skull print balaclava were also found, along with a copy of Mein Kampf by Adolf Hitler and the Siege by James Mason.

  19. During the execution of the search warrant, the offender provided access to the police to his Apple iPhone. Forensics examination of the device revealed a very large number of videos and images relating to ideologically motivated violent extremism. The majority of the material on the offender’s phone originated from other sources, however the offender had also created a number of images.

  20. By way of example, images located during examination of the device depicted the offender posing wearing skull masks, swastika armband and a ballistic plate carrier, decorated with a sonnenrad posing whilst raising his arm in a Nazi salute, posing wearing a skull mask in a military helmet whilst raising his arm in a Nazi salute, wearing a skull mask in military helmet, with the words “just killed two women on my way home, so proud of myself, baddie, cutie” superimposed over the image.

  21. The offender was taken to Albury Police Station. The offender was interviewed from 10.03am until 9.07pm on 9 December 2020. He answered around 3950 questions. A summary of the interview was placed before me by the Crown. I have also watched excerpts from the interview tendered by the offender’s counsel. I record now and will discuss this further, the offender appears to be very young and immature in his presentation during the course of that interview.

  22. On 9 December 2020, members of the EB chatroom exchanged messages in relation to the offender’s arrest. At 7.45pm on 9 December 2020, the Telegram user Nazbolnoah posted a video montage of the offender’s Snapchat and Telegram activity. The messages discussed the offender’s arrest and the fact he needed help. The video was tendered by the Crown on sentence and I have watched it.

  23. The Telegram posts contain a view counter on the bottom right corner. A forwarded message will revert back to zero views once forwarded from the original group. One image was viewed 4,203 times on the EB channel alone. I note the agreed facts state that simply scrolling past an image or even clicking on the group without actually viewing the image or video, will count as a view on the image in Telegram.

Objective Seriousness

  1. I will now consider the objective seriousness of the offence. Later in these remarks, once I have reviewed the offender’s subjective case, I will then address the closely related issue of the offender’s moral culpability, his moral blameworthiness, for the offending.

  2. Before considering the objective seriousness of the offence, it is appropriate that I set out briefly what appear to be accepted principles to apply when sentencing for terrorist offences. The principles are essentially derived from Justice Bellew’s decision in the The Queen v Uweinat [2021] NSWSC 1256 which I was informed is the only previous sentencing judgment concerning an offence under s 80.2C(1) of the Code and Justice Hamill’s judgments in The Queen v Dakkak [2020] NSWSC 1806 and The Queen v Taleb (No 5) [2019] NSWSC 720.

  3. The predominant considerations in sentencing an offender charged with a terrorism related offence include the protection of the community, punishment of the offender, denunciation of the offence, specific and general deterrence. Where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance. The ideological motivation of the offender is relevant to a consideration of the issue of community protection, as well as to an assessment of the objective gravity of the offending.

  4. The depth and extent of the radicalisation of an offender as demonstrated for example by the possession of extremist material, or the communication of extremist views to others, is relevant to the assessment of the objective seriousness of the offending and will be a significant factor when considering rehabilitation and dangerousness. The objective seriousness of a terrorism related offence may be affected by the extent to which the offender has been responsible for indoctrinating or attempting to indoctrinate others, and the vulnerability of those others.

  5. Youth may be relevant to an assessment of an offender’s moral culpability, however, where there is an absence of any causal link between an offender’s age and the criminal conduct and where the offending is serious, the principles concerning the relevance of the offender’s youth and sentencing must be appropriately moderated. Subjective circumstances and mitigating factors including rehabilitation are to be given less weight than might otherwise be the case when sentencing for other offences.

  6. I’ll now turn to specifically consider the objective seriousness of the offence committed by this offender. The offence for which the offender is to be sentenced involved the offender advocating the doing of a terrorist act; or the commission of a terrorism offence, if the offence concerned fell within a particular definition, and in engaging in that conduct was reckless as to whether another person would engage in a terrorist act or commit a terrorism offence referred in the provision.

  7. Recklessness for the purposes of this offence means the offender was aware of the substantial risk that a person would engage in a terrorist act or commit a relevant terrorism offence, and having regard to the circumstances known to him, it was unjustifiable to take the risk. Any form of terrorist offence is obviously serious, as terrorism in the modern world is one of the greatest threats to the values of western liberal democracies such as Australia and the freedom that we all expect to enjoy.

  1. The risk of carnage to both persons and property is also another factor that underlies the seriousness of such offences. In the 1930s and 1940s in Germany, the world witnessed the calamity that can occur when violent far‑right extremism is able to overturn democratic government and the rule of law. It is more than a reasonable inference that the advocacy of terrorism heightens the probability of terrorist acts or the commission of terrorism offences on Australian soil and again underlines the seriousness of the offence for which the offender is to be sentenced.

  2. While the offence for which the offender is to be sentenced remains a serious offence, in terms of the range of seriousness of the terrorism offences provided for in the Commonwealth’s Code, the maximum penalty being 5 years imprisonment, means that the nature of the offence is considered to be less serious than many other terrorist offences.

  3. The offender’s offence involved multiple acts of advocacy over a period of approximately 11 months. His advocacy was limited to his online activities, however the second reading speech concerning the introduction of the offence creating provision indicates that the Commonwealth parliament was concerned about the use of social media to accelerate the spread at which persons can become radicalised and prepare to carry out terrorist acts.

  4. The second reading speech also stressed the compounding effect of the circulation of graphic violent imagery in the same online forums as where the statements of advocacy are made. Here, the offender circulated online graphic imagery of violence, along with his messages, on numerous occasions.

  5. The agreed facts demonstrate that the offender in his online forums and other online activities enthusiastically endorsed and promoted violent extreme right‑wing views and ideologies and persistently encouraged and urged the carrying out of terrorist acts against specific groups within our society. By his plea, he acknowledged that he did so aware of the substantial risk that a person would engage in a terrorist act or commit a relevant terrorism offence as a consequence of his advocacy.

  6. The offender’s advocacy involved both general distribution of material via social media, as well as personal communication from individuals. He created a dedicated channel and chatroom to facilitate his advocacy. The number of persons who subscribed to his channel and viewed his posts was relatively limited. It was not in the tens or hundreds or thousands. Much, but not all, of the material the offender posted, was created by others and reposted by him.

  7. There is no evidence that any act of violent terrorism occurred as a consequence of the offender’s advocacy. While I am satisfied that the offender did have the relevant recklessness required for the commission of the offence, I am not able to be satisfied beyond reasonable doubt that he had an intention to cause another person to engage in a terrorist act or offence. That is primarily because of his age and immaturity and the fact that while he spoke in his online posts about violent weapons and making bombs, nothing along those lines was found when the police searched his premises.

  8. I am also left with a sense that much of what the offender said in his online posts was said to try to fit in with the extreme right-wing community he had joined online, because he had been unable to fit in anywhere else. An assertion in one of his posts concerning an attack on Mrs Merkel, the then German Chancellor, given he was an 18 year old sitting in front of a computer in the NSW country town of Albury, to my mind had an air of fantasy about it. When I say computer I include a mobile phone.

  9. The offender was, on the material, not a member of a prescribed terrorist organisation, and had no access to explosives and posted material solely online. It is effectively unknown as to whether his advocacy achieved its objective but that does not, in my opinion, lessen the objective criminality of these offences.

  10. The Crown submitted that the offender’s offence fell within the mid-range of conduct contemplated by s 80.2C(1) of the Code. The offender’s counsel submitted that the offence falls below the mid-range for offences of this type.

  11. While strictly speaking it is not necessary for me to grade the offence along some notional range of objective seriousness, I am of the opinion that the offence falls a little below a notional mid-range offence.

The Offender’s Subjective Case

  1. I will now consider aspects of the offender’s subjective case. Under s 16A subs (2)(m) of the Commonwealth Crimes Act, I am required to consider the offender’s character, antecedents, age, means and physical and mental condition and I propose to consider those matters now.

  2. The offender is currently twenty years of age and was nineteen years of age during the period of the offences. He is what the law calls a “young adult offender”, and the principles applicable to the sentencing of young adult offenders apply here. Those principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing such a young adult offender. See the summary of relevant principles in Bullock v R [2016] NSWCCA 131 referring to BP v R [2010] NSWCCA 159. I referred earlier to the general principles concerning the relevance of youth when sentencing for terrorism offences and that in some circumstances there is a modification of the general principles that I have just referred to. Here, however, when I consider all the evidence before me, in particular the evidence contained in Mr Sheehan’s report which I will review in detail shortly, I consider that there is a causal link between this offender’s young age and immaturity and the offence he has committed. His young age, and associated immaturity is therefore a factor that reduces his moral culpability or blameworthiness for the offence.

  3. The offender has no prior criminal history and I consider that entitles him to some leniency here.

  4. The following documentary material was placed before me in relation to the offender’s subjective case:

  5. A report from Mr Patrick Sheehan, a Forensic Psychologist, dated 7 June 2022, and Mr Sheehan was cross-examined on his report by the Crown. Mr Sheehan had conducted an audio-visual assessment of the offender on 3 June 2022. At the time of his assessment, he did not have the interview the police conducted with the offender on 9 December 2020, but did by the time he gave evidence. He confirmed in his oral evidence that the content of the interview did not cause him to change any opinions he expressed in his report.

  6. An affidavit of James Payten, the offender’s solicitor, affirmed on 1 July 2022 was read and ultimately paragraph seven, and annexure A to that affidavit was not pressed, it having been objected to by the Crown. Mr Payten was not required for cross-examination.

  7. An affidavit of the offender’s mother, Jane Lovelock, affirmed on 4 July 2022 was read, and Ms Lovelock gave oral evidence and was cross-examined by the Crown. I do not have a transcript of the evidence of Mr Sheehan and Ms Lovelock at the time of the delivery of these remarks on Sentence.

  8. The offender’s counsel, as I mentioned earlier, also tendered extracts of the video interview conducted with the offender by the police on 9 December 2020.

  9. The offender did not himself give evidence on sentence and I have taken that into account when assessing what weight to give to statements he has made about his involvement in the offence to third parties. I record that there was nothing about the evidence of his mother which caused me to have any concerns about the truthfulness of her evidence; similarly in relation to the evidence of Mr Sheehan.

  10. Turning then to the evidence concerning the offender’s family background. Ms Lovelock’s evidence was that she remained in a relationship with the offender’s father for five years after the offender was born.

  11. Ms Lovelock detailed the offender’s father’s battle with the drugs cannabis and heroin in her evidence. When the offender was four or five years of age, the family was living in Melbourne after the offender’s mother had separated from his father. Ms Lovelock was raising another son and twins and holding down employment with assistance from her sisters and other family members. From time to time while in Melbourne, the offender and his brother would stay with the offender’s father and his new partner.

  12. After Ms Lovelock had moved to Albury, there were occasions when the offender would stay with his father in Melbourne. On one such visit, Ms Lovelock determined that the father was using illicit drugs around the children and the visits then ceased, although the father did come to Albury to spend time with the offender.

  13. In 2006, according to Ms Lovelock’s evidence, she commenced a new relationship with a man, “Who was in and out of gaol a lot”, including for offences he had committed against her. Ms Lovelock detailed in her affidavit, domestic violence perpetrated upon her in the family home during that relationship, resulting in her leaving him. The offender would, around that time, spend time with his paternal grandmother and great grandmother.

  14. The offender’s mother’s evidence was that around ten years of age, the offender started to be obsessed with Russia and Slavic culture after spending time with his paternal grandmother. Ms Lovelock described having some concern about the influence of the grandmother around that time. Her evidence was that the offender would through his teens talk, “nonstop” about that issue and told her he wanted to join the army and fight for Russia. The mother’s evidence was that around that time she wondered if the offender had “Asperger’s”.

  15. The offender’s mother gave evidence that until the offender was sixteen years of age, she did not have the internet on at home, but that the offender’s paternal grandmother had given him a phone with an internet plan and he had been able to use the internet at the grandmother’s home. Ms Lovelock’s evidence was that when the offender was sixteen, seventeen and eighteen years of age, he withdrew from life to some degree and did not like socialising at all. Her evidence was that the offender left school; did not want to work and repeatedly talked about joining the army.

  16. The offender’s mother travelled from Albury to Parramatta for the two days of the sentencing hearing on the fourth and fifth of this month. Her evidence was that was the first time she had seen her son since his arrest. However, in her affidavit she detailed that she has phoned him every day that he has been in custody and that they remain very close.

  17. The offender gave a history of his family life to Mr Sheehan which was, generally speaking, consistent with the evidence of his mother. He recalled to Mr Sheehan that his parents had separated when he was four years of age and he had no memory of them being together as a family unit. He said he stayed with his mother who re-partnered with an abusive male who was domestically violent. The offender recalled to Mr Sheehan that his mother’s relationship with that man ended when he was in the third grade. The offender recalled that he had been raised with his brother and half-sister; that his mother worked in retail, and he recalled problems associated with poverty, with the family living in unstable housing for an extended period. He recalled that his uncle lived with the family for a year but that he was unstable due to drug addiction. He confirmed that his mother had re-partnered in 2019 and that he has a positive relationship with that man. According to what the offender told Mr Sheehan, he has remained in regular contact with his father, staying with him on holidays and weekends and said his father had a history of abusing illicit substances and on occasions, in the offender’s presence.

  18. Turning then to the offender’s education and employment history. Ms Lovelock described the offender as well behaved in primary school but was concerned that he was falling behind as he appeared unable to concentrate on anything, and appeared disinterested. Her evidence also was that she began to notice obsessive compulsive behaviours in the offender when he was about five years of age; for example that he had a routine of touching the corners of the couch every day, with that routine lasting for over twelve months. Ms Lovelock’s evidence was that she around that time, took the offender to see a psychologist for a brief period, but she had no recollection of there being any formal diagnosis given to her.

  19. According to Ms Lovelock’s evidence, the offender performed poorly in high school and struggled to keep up. While she had no memory of any teacher suggesting that the offender suffered from autism, she did recall derogative comments made by other students along those lines. Consistent with the evidence given by his mother, the offender described to Mr Sheehan a difficult school experience. He said he was in mainstream classes and did not repeat years but reported some learning difficulties, having a tutor sit in class with him. He told the psychologist he had trouble writing, he struggled socially and felt bullied and excluded. The offender reported that he and his mother were told that he was autistic but that they rejected that. The offender said that in high school his literacy developed, but he disliked school intensely. He was said to engage in regular truancy and was suspended on one occasion. He completed Year Ten and discontinued school mid-way through Year Eleven.

  20. According to what the offender told Mr Sheehan, he entered an apprenticeship in commercial cookery, attending TAFE and worked in an Italian restaurant, maintaining that employment for about two years until his arrest. He told Mr Sheehan that he had always had aspirations to enter the Army, and had applied when 17 but it appears he never pursued the application. Mr Sheehan considered that the offender’s discourse on that topic “almost seemed a fantasy of being strong, capable and confident”.

  21. Ms Lovelock in her evidence described the offender obtaining a job as a chef at a local restaurant which was taken over by an Indian family and some workers were of the Islamic faith. Her evidence was that she observed that the offender had a good relationship with the Indian workers at the restaurant, he had no difficulties at work, he would often be driven home by a co-worker, as he himself had never obtained a licence. The offender told Mr Sheehan that he had positive relationships with his co-workers of Indian background, but never associated with them outside of the workplace.

  22. The offender denies any issues with illicit substances and reported a modest use of alcohol. He did tell the psychologist that he had consumed four beers on the night he made the Snapchat post on 7 December 2020, which read, “I’m actually going to commit a massive national tragedy”.

  23. I turn then to consider his psychological history. The psychologist recorded that the offender denied any history of the symptoms of psychosis and has never been made a psychiatric inpatient. The offender reported having been unhappy since middle childhood, seeing himself as inadequate and out of place. Mr Sheehan reported that the offender described pervasive feelings of alienation, anxiety and inadequacy and said he “never fitted anywhere, I don’t belong”. The psychologist recorded that the offender said he always felt ill at ease and inferior in social settings, not knowing how to interact with others, and reported being bullied throughout his schooling, particularly in high school. He was said to never have been invited to parties, had no interest in activities that brought children together such as sports, was small, thin, feeling physically inferior to his peers.

  24. The offender told the psychologist that he had been experiencing suicidal ideation from the age of 15 years. During the sentence hearing, I observed the offender in the dock to appear to be highly stressed to a greater degree than I have observed in other offenders over many years. He sat for much of the proceedings with his head down and his hands clasped to his head. In discussing with the psychologist his involvement with the far right, the offender described his attachment to Slavic culture and that his connection with people on the internet with far-right views meant that he “felt recognised” and that he wanted to impress such people, that he felt more powerful by his association with such people and had an opportunity to express his anger.

  25. Mr Sheehan records that the offender fantasised about being strong and respected through his identification with Slavic culture; that he projected insecurities on to a racist belief system and that he had found an outlet for his anger and dark thoughts through the posting of hateful comments. Mr Sheehan records that, consistent with the Justice Health file concerning the offender, he experienced an acute emotional collapse on his admission to custody, presenting as suicidal and scoring in the ‘severe’ range on measures of duress, distress and depression. Mr Sheehan records that risk intervention team protocols within the gaol were activated, but by 7 January 2021, the offender appeared more settled. The records indicate that a psychiatrist had expressed the opinion the offender was “likely on the autistic spectrum”.

  26. Upon presentation for his assessment, Mr Sheehan considered that the offender appeared younger than his age in both physical appearance and manner. The offender was recorded as speaking in a flat and monotonous way and showed little facial expression. There was said to be no evidence of thought disorder, but he appeared primarily depressed and anxious and was openly tearful on occasion. The offender rocked back and forth when interviewed, appearing to comfort himself while doing so. He reported ongoing suicidal ideation but not in the immediate term and told the psychologist that he thought of suicide every day. No intelligence testing was conducted with the offender, but Mr Sheehan considered that he appeared to be of low average functioning consistent with his education and achievements.

  27. Mr Sheehan expressed the opinion that the evidence “points towards the presence of autistic spectrum disorder requiring support without intellectual impairment or language impairment as the primary diagnosis”. In his cross‑examination, the psychologist confirmed that this was a formal diagnosis that he had made concerning the offender and accepted the offender appeared to be at the milder end of the range of the disorder. The psychologist noted that the offender has highly fixated and restricted interests, in particular his fixation on race and lineage. He considered there was no evidence of anti-social personality disorder. Mr Sheehan expressed the opinion that there was a connection between the offender’s Autistic Spectrum Disorder and the offender’s resultant vulnerabilities, with the commission of the offence, being his need for belonging, coupled with poor social judgment, grievance and social alienation, obsessive interest combined with fantasies of strength and unexpressed anger.

  28. The offender’s beliefs in violent extremism Mr Sheehan considered would have been formed through a combination of tensions between his weak self-image and his desired self-image, escaping feelings of social rejection and powerlessness by identification of idealised strength through ideas of racial purity, allowing him to project his unexpressed anger to a target driving an obsessive and morbid interest in ideological violence where he could feel powerful and accepted by other racist men.

  29. I also note, consistent it seems to me with Mr Sheehan’s opinion, the offender on more than one occasion said to the police in his interview that he made certain posts in order to fit in or to belong.

  1. I am satisfied that the evidence of both the offender’s difficult upbringing in which he was exposed to a degree of domestic violence and drug taking within the family home and of his mental health, being his autistic spectrum disorder, also reduces his moral culpability for the offence. In a well‑known passage from R v Millwood [2012] NSWCCA 2 Justice Simpson, as her Honour then was, with whom the remainder of the Court agreed said:

“I am not prepared to accept that an offender who has the start in life the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal or advantaged upbringing’. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his or her behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility but I consider that the DPP submissions significantly underestimates the impact of a dysfunctional childhood.”

  1. Her Honour’s observations have in essence been approved in the well‑known High Court decision in Bugmy v The Queen [2013] HCA 37. The facts concerning the offender’s background fall squarely, in my view, within the principles outlined by Simpson J in Millwood.

  2. The relevance of an offender’s mental health to sentencing is well known. The principles in relation to the relevance of a person’s mental health to sentencing was summarised in the DPP v De La Rosa [2010] NSWCCA 194:

“Where the state of a person’s mental health contributes to the commission of the offence in a material way the offender’s moral culpability may be reduced, consequently the need to denounce the crime may be reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. It may mean that a custodial sentence will weigh more heavily on the person because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced. It may reduce or eliminate the significance of specific deterrence. Conversely, it may be that because of a person’s mental illness they present more of a danger to the community. In those circumstances considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an anti-social personality disorder there may be a particular need to give consideration to the protection of the public.”

  1. The evidence establishes that the offender does not have an anti‑social personality disorder, so in my view the final De La Rosa principle has no application here.

  2. Mr Sheehan’s report and the nature of the offending, establishes that the offender’s autistic disorder has a causal link to the offending in that his isolation in society, his vulnerability, coupled with poor social judgment, grievance and social alienation, obsessive interest combined with fantasies of strength and unexpressed anger led to him engaging in his on‑line advocacy. These factors, along with his youth and immaturity, all reduce his moral culpability for the offence, in my opinion.

  3. I now propose to consider the degree to which the offender has shown contrition for the offence and his prospects of rehabilitation. In the offender’s record of interview with the police, there were some statements that fall within the concept of contrition for some aspects of his offending conduct.

  4. For example, the comments he made to the police expressing shame for some of the posts he had engaged in and that he hated himself for them. Having watched excerpts from the interviews where some of those comments were made, in my opinion, the offender appeared to be genuine when he made those statements. Mr Sheehan records that the offender acknowledged his offence consistent with the agreed facts that are before me. The offender was said to be comfortable about what he had found reinforcing about his exchanges with the other people on-line, finding acceptance and strength but underplayed the hatefulness and violence of the beliefs he expressed. The offender denied that he had any intention of carrying out a national tragedy.

  5. Mr Sheehan records that the offender said he no longer adheres to the racist views and that the events of 2020 have dismantled his previously idealised view of Russia and Ukraine as some form of utopia. As the offender has not given evidence on sentence, these assertions have not been tested before me.

  6. In 2020, the offender’s mother commenced a relationship with a pro‑social partner, and her evidence was that the offender got along with her new partner well before he was arrested. That partner has now moved in with the offender’s mother and her two other children. His mother remains supportive of the offender and is willing to provide him with a home when he is released from custody.

  7. While Mr Sheehan acknowledged that his report did not constitute a comprehensive risk assessment of the offender being a danger to the community, he did express the opinion that the extreme views about the use of violence to achieve an ideological aim expressed in many of the offender’s online posts has softened since his arrest, and that the offender has not “dug in” in the way the psychologist has observed with other extremist offenders.

  8. Mr Sheehan considered that the offender did not view himself as a martyr for his cause. The psychologist considered that the offender’s motivation “would appear mostly underpinned by group belonging, search for meaning and acquisition of status, and to a lesser degree moral superiority and glorification”. In cross-examination, Mr Sheehan expressed the opinion that overtime it would appear the offender’s extremist views have softened. The psychologist accepted that there was some doubt as to whether the offender has truly renounced his extremist views but said that is always the case with such offenders.

  9. The offender entered an early plea of guilty and I will consider its utilitarian value shortly. Overall, I consider there is some evidence of contrition here given his early plea of guilty, some of the comments in his ERISP, in his interview with police, and the observations of Mr Sheehan. I am unable to be certain that the offender no longer adheres to many of his extreme right‑wing views about race, religion and sexuality, that is because he did not give evidence on sentence so his assertions to Mr Sheehan have not been tested under cross-examination, as I say.

  10. I am satisfied, however, that there has been at least a softening of those views that he held at the time of the commission of the offence. He is young, would now appear to have stable family support, no prior record and the ability to hold employment. I consider he has reasonable prospects for rehabilitation. It is important I think to say something about the conditions of his custody.

  11. I recorded earlier that the first time the offender’s mother had seen him since his arrest was in the Court room when the sentence hearing was conducted. He is permitted to speak on the phone to his mother, brother and sister, but only by way of one 7-minute conversation every second day. He does have monthly audio visual visits from his aunt. He is not vaccinated for COVID-19 as he has a needle phobia and will not be permitted in person visits.

  12. The psychologist records that the offender, since his admission to custody, is socially isolated as he is segregated from other prisoners and is frightened by them. He does have video visits with a peer aged girl who had been his girlfriend when he was 13. Mr Sheehan noted that no educational or employment programs have been available to the offender since his admission to custody. He also noted that the offender has incurred no institutional misconduct charges, that he has access to a closed yard most days between 9am and 2pm, but is alone at that time.

  13. The offender reported rolling lockdowns as a consequence of COVID-19. It is well known that conditions of custody for all inmates have been much harsher during the pandemic, with inmates spending longer periods in their cells, few if any in person visits and few if any rehabilitation programs. Unsurprisingly, Mr Sheehan expresses the opinion that the offender is a vulnerable inmate at this point in time.

  14. It cannot be doubted that the conditions under which the offender has been held in custody have been extremely onerous for someone who entered custody for the first time aged 18 and who suffers from autism. I have had regard to those onerous conditions in arriving at the appropriate sentence to impose.

Imposition of sentence

  1. It was common ground that the offender had entered his plea of guilty in the Local Court which was in the early stage of the proceedings. When a person charged with a Commonwealth offence is to be dealt with in this Court by way of sentence, enters a plea of guilty in the Local Court, they should generally be provided by the sentencing judge with a 25% discount of their sentence for the objective utilitarian value of their plea. See Kaurasi v R (Cth) [2020] NSWCCA 253. In accordance with that authority, I will provide the offender with a 25% discount of his sentence for the utilitarian value of his plea.

  2. As I outlined earlier, general deterrence is an important principle to reflect whenever sentencing for a terrorist offence. The public rightly expects the Courts to impose significant sentences on people who commit offences which advocate the commission of violent acts to further ideological causes, completely at odds with the way of life we in western liberal democracies live.

  3. Here, consistent with the principles I outlined earlier from De La Rosa, there is some reduction in the need to reflect general deterrence in this sentence. There is always a need to reflect an element of personal deterrence when sentencing for an offence as serious as a terrorism offence.

  4. Co‑operation with law enforcement agencies in an investigation is another factor I am to have regard to under s 16A of the Crimes Act. The offender provided the police with his mobile phone upon his arrest. He took part in a record of interview with the police from 10.03am until 9.07pm on the day of his arrest answering some 3,950 questions, in which he made a number of relevant admissions against his interest. I have considered his co-operation with the authorities in the general mix of factors I am to consider when imposing sentence upon the offender.

  5. Section 17A of the Commonwealth Crimes Act states,

“A court shall not pass a sentence of imprisonment on any person for a Federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.”

  1. Submissions were advanced on behalf of the offender that a sentence other than imprisonment was appropriate in all the circumstances of this case; relying substantially on Justice Hamill’s decision in R v Taleb (No 5) [2019] NSWSC 720.

  2. The Crown submitted that the only appropriate sentence is one of imprisonment.

  3. I am of the opinion that the serious nature of the terrorism offence which the offender committed, despite his compelling subjective case, means that the only appropriate sentence is one of imprisonment, especially when I have regard to the principles of general deterrence. The advocacy of terrorist acts and terrorism offences over a period of eleven months is a very serious offence, in my opinion. The fact that, as will shortly be seen, the offender will have served his sentence without having completed any rehabilitation programmes before re-entering the community, and will not be subject to parole as his total sentence will have expired, cannot, in my view, dictate that a lesser form of punishment be imposed. It is unfortunate, and perhaps this case may encourage the provision of appropriate programmes to offenders who have entered pleas of guilty but have not yet been sentenced, especially given the delays in the criminal justice system that have occurred due to the impact of COVID-19.

  4. The fact that the sentence I will shortly impose means the offender will, as I understand it, leave custody, not having been provided with any rehabilitation programmes and will not be the subject of parole, has caused me considerable disquiet. It is not a proper reason, however, to artificially inflate the sentence I consider is the appropriate one to impose.

  5. The offender has been in custody since his arrest on 9 December 2020. His counsel submitted that the period of custody the offender has experienced is:

“A substantial period for an eighteen year old offender with a cognitive impairment and no criminal record, who has pleaded guilty to an offence carrying a maximum penalty of five years.”

  1. The Crown indicated he agreed with that submission, as do I.

  2. This is an offence whereby under the Code I am required to impose a minimum non-parole period of three-quarters of the total sentence. The maximum penalty has been taken into account as a legislative guidepost. I consider that prior to the application of the 25% discount of his sentence for the utilitarian value of his plea, the appropriate starting point of the sentence is two years imprisonment.

  3. Mr Jakovac is formally convicted of the offence of advocating the doing of a terrorist act or commission of a terrorism offence. I impose a sentence of eighteen months imprisonment with a non-parole period of fourteen months imprisonment. The sentence commenced on 9 December 2020 and expired on 8 June 2022, and the non-parole period expired on 8 February 2022.

Orders

  1. Convicted of the offence of advocating the doing of a terrorist act or commission of a terrorism offence.

  2. Impose a sentence of 1 year and 6 months imprisonment, consisting of a non-parole period of 1 year and 2 months. The sentence commenced on 9 December 2020 and expired on 8 June 2022. The non-parole period expired on 8 February 2022.

**********

Decision last updated: 25 November 2022

Cases Citing This Decision

0

Cases Cited

9

Statutory Material Cited

2

Bugmy v The Queen [2013] HCA 37
Bullock v R [2016] NSWCCA 131
BP v R [2010] NSWCCA 159