R v J Lucas

[2022] NSWSC 1206

Supreme Court

New South Wales

Medium Neutral Citation:

R v J Lucas [2022] NSWSC 1206

Hearing dates:

25 August 2022

Decision date:

09 September 2022

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1) Joshua Bruce Lucas, you are convicted of the offence of advocating a terrorist act.

(2) You are sentenced to imprisonment for 2 years that commenced on 14 March 2020 and expired on 13 March 2022, with a non-parole period of 1 year 6 months that expired on 13 September 2021.

Catchwords:

CRIMINAL LAW – Offences – Sentence –Intentionally advocating a terrorist act – Application of Commonwealth sentencing principles – Serious offending constituting course of conduct over one year – Offender ideologically motivated by right-wing extremism – Offender 21 years old at time of offending – No previous criminal history – Offending inextricably linked to deprived and unsatisfactory upbringing – Offender experiencing most restrictive and isolating form of custody during Covid-19 pandemic – No evidence of renunciation or remorse – Strong inference available of regret for offending – Guarded prospects of rehabilitation

Category:

Sentence

Parties:

Rex
Joshua Lucas (Offender)

Representation:

Counsel:
R Taylor (Crown)
M Avenell SC (Offender)

Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
Legal Aid NSW (Offender)

File Number(s):

2020/82674

JUDGMENT

Introduction

1. On 7 March 2022, Mr Joshua Lucas (the offender) was arraigned in the Supreme Court sitting at Parramatta before a jury panel and me on an indictment averring two counts against him. The first alleged (in short) that he had done acts in preparation for or planning a terrorist act or acts. The second was an allegation that he had sincerely advocated the doing of a terrorist act by another person, appreciating the substantial risk that another person may act upon that advocacy. The indictment also contained a third count alleging an offence by another person, but that need not be further discussed.

2. At the conclusion of the trial on 27 June 2022, the jury could not come to a unanimous verdict on the first count. I understand that the offender will stand trial again on it later next year. On the second count, however, the jury had returned a unanimous verdict of guilty on 15 June 2022.

3. It now falls to me to sentence the offender for that offence. It carries a maximum penalty of imprisonment for five years, no standard non-parole period, and no mandatory minimum term.

4. My findings of fact must be consistent with the jury verdict, including the direction that I had given to the jury that they could not return a verdict of guilty unless all unanimously satisfied that the offender had, on at least one particular occasion, sincerely advocated the doing of a terrorist act.

5. In accordance with well-established sentencing principles, disputed aggravating features above and beyond the elements of the offence must be proven beyond reasonable doubt; mitigating features need only be proven on the balance of probabilities; and it is perfectly possible that some matters will remain obscure.

Objective features

6. The objective features of the offence are as follows. Between the dates of 15 March 2019 and 14 March 2020, the offender was extremely active on social media. In particular, he was a member of chat groups, the titles of which, and the usernames of the members of which, were redolent of right-wing extremism. Over a period of some months, albeit with at least one significant gap in time, he adopted the course of conduct of encouraging other persons online to commit acts of terrorism.

7. Whilst it is true that much of what he said, did, and posted throughout that period was self-aggrandising rubbish, some of what he posted was not. Neither counsel submitted that it was necessary for me to determine which of the 27 particularised alleged acts of advocacy had been proven beyond reasonable doubt as falling within the parameters of the offence, and I shall therefore not attempt to do so. It is sufficient to say that I am satisfied that, on at least several occasions, the offender sincerely sought to persuade at least one other person to commit an act of political violence, appreciating that the recipient of the advocacy may well do so.

8. Contrary to the intricate submission of senior counsel for the offender, I do not accept that those acts were undertaken without the underlying motivation of right-wing extremism. To expand on that: I am satisfied to the necessary degree that the offender was intentionally advocating the doing of a terrorist act by persons whom he understood to be right-wing extremists, because of his shared views of that nature.

9. I say that for the following reasons. Although the political views of the offender were incoherent and to a degree unformed, there were some consistent underlying themes. One of them was pronounced, offensive racism. Another, relatedly, was virulent antisemitism. Another was an interest (at the least) in Nazism, historical and contemporary. Yet another was a rejection of orthodox, peaceful, democratic political change, and an embrace of force to achieve political ends. Most concerningly, yet another was sincere admiration for the perpetrator of the atrocity that is the Christchurch massacre.

10. To repeat: the offence is constituted by a right-wing extremist, on at least several occasions, sincerely advocating that other right-wing extremists commit acts of political violence.

11. Self-evidently, the offence is inherently serious, and calls for significant denunciation, general and personal deterrence, and punishment, by way of the judicial system of any democratic society that seeks to defend itself. And whilst it is true that Parliament has seen fit to set a surprisingly short maximum penalty of imprisonment, reserved for the worst class of case, I regard this as a serious example of a serious offence. Certainly, the threshold of being affirmatively satisfied that imprisonment, in the form of full-time incarceration, has been crossed; senior counsel did not seek to persuade me to the contrary.

Subjective features

12. Turning from the offence to the offender who committed it, Mr Lucas was born in April 1998. That means that on the first date in count 2 he was 20 years old, and on the last date he was aged 21. I have no doubt that his youthful immaturity, combined with other subjective matters that I shall now summarise, played a role in the commission of this offence.

13. Born and raised in regional New South Wales, the offender, I accept, suffered an unsatisfactory and deprived upbringing. It was spoken of in the trial by witnesses on oath, whose evidence has not been called into question at any stage of the proceedings. His parents both suffered from their own psychological difficulties, the household was chaotic, and the family moved premises to a disruptive degree. Although the evidence at trial focused on the latter stages of the childhood of the offender, I accept on balance that things were disrupted and difficult for this family from his earliest years.

14. Unsurprisingly, that upbringing led to psychological problems, albeit I am not in a position to describe them with specificity. They in turn led to him being suspended repeatedly, even in primary school; his becoming argumentative, provocative, eccentric, and isolated; and his departure from high school at an early stage, despite his obvious intelligence.

15. By the time of the commission of the offence, he was living with his father in the Shoalhaven, impecunious, not working, not studying, blessed with few friends, possessing very limited interests, and never having enjoyed an intimate romantic relationship. As I have said, he spent a great deal of time online alone, including at all hours of the day and night, and gained emotional sustenance from digital contact with persons whom he was destined never to meet in person.

16. Certainly, the lonely, idle, aimless, dissatisfied life being lived by this young man at the time of the commission of the offence does not excuse it. Even so, in my opinion, it goes a long way to explaining how it happened.

17. Furthermore, contrary to the big-noting rubbish that he has asserted about the imaginary crimes that he had committed, in fact, at the time of this offence, the offender possessed no criminal record whatsoever. That is not only a matter that I take into account in his favour in itself. It may also play a positive role in his prospects of rehabilitation, a topic to which I shall return shortly.

18. To be weighed against those mitigating features is the complete absence of evidence of remorse, or indeed any drawing back from the views that I am satisfied the offender possessed during the relevant time. Having said that, I appreciate that the presentation of subjective aspects of his plea in mitigation was inevitably circumscribed by the pending proceedings on the more serious count.

19. Furthermore, although there is no material upon which I can be satisfied on balance that the offender is remorseful in the true sense of sincere repentance, in light of the ordeal of his conditions of custody over the past two and a half years, I am satisfied that, at the least in a self-centred way, he has come to regret his actions.

20. To expand on that: as one would expect of any person charged with terrorist offences, the offender has been held in extremely constrained conditions of custody. But they have extended beyond what I would regard as the usual conditions, even for those unusual prisoners. In my opinion, the conditions of custody experienced by the offender are so profoundly isolated that they would damage the emotional well-being of a completely psychologically well person, let alone that of a person like the offender, who, I am satisfied, is not completely psychologically well.

21. To give but two examples: as at the date of the proceedings on sentence, the offender was entitled to have contact with absolutely no other prisoner. That is harsh indeed, perhaps soul-destroying. Furthermore, although he has been permitted to speak to persons by mobile telephone, he has not been permitted to see either of his parents for two and a half years, not just by way of a contact visit, nor through glass, but even by way of AVL contact.

22. Finally, the strictures in Australia of the pandemic, and in particular, their effect on incarcerated persons, commenced almost exactly at the time when the offender was arrested, in March 2020. I am well entitled to take judicial notice of the fact that they have made incarceration even more difficult than it usually is for every person in prison, and triply difficult, as it were, for a young man in gaol, for the first time, in conditions far more restrictive than maximum security.

23. It is not my place to criticise those conditions of custody, not least because I have not heard from those who have imposed them, and I know nothing of the asserted reasons for them. Even so, I think I am obliged to take them into account as a form of extra-curial punishment, first visited upon a young man of 21 years of age with no criminal record whatsoever.

24. As for the future, there are a number of grounds for optimism. One is, as I have said, the complete absence of earlier offending. Another, as I have also said, is the obvious intelligence of this young man. A third is the possible inference that his incarceration over the past many months has led to reflection on which forms of political discourse are acceptable and which are not, with the possibility of adjustment of his behaviour in the future. Another is the fact that he seems to have tried to use his time in custody quietly and constructively. Yet another is my hope that his engagement with the criminal justice system will eventually lead to him getting psychological help, and there being a measure of supervision and structure brought to his previously thoroughly fruitless life throughout the time of the offence.

25. To be weighed against that is, as I have said, the lack of evidence of true remorse; the complete lack of evidence of a change of heart with regard to political matters; and the general uncertainty arising from the pending retrial. In particular, it is impossible to know as at today whether the offender will be released next year without any form of conditional liberty, having been acquitted; or, in the alternative, will spend many more years in custody, having been convicted.

26. Weighing all of that up, I think that, at this stage at least, one can only approach the prospects of rehabilitation of Mr Joshua Lucas with guarded optimism.

27. The only other subjective feature that I believe merits discussion is the surprising fact that, in truth, the offender is of Aboriginal background, and according to recent file notes from custody is looking forward to exploring his cultural inheritance. That needs to be reflected upon in the context of the deeply offensive racist posts that the offender created about people of colour generally, and Indigenous Australians in particular. Although senior counsel did not seek to develop the point and rely upon it, I must say that it simply bolsters my satisfaction on balance of a significant underlying pathology; perhaps, poignantly, one founded upon self-hatred.

Mechanistics

28. I turn briefly to discuss mechanistic and logistical matters.

29. The offender is entitled to a full backdate to the date of his arrest and continuous incarceration; that is, 14 March 2020.

30. Secondly, I do not propose dutifully to work my way through the mandatory matters for consideration in statute; suffice to say I am confident that these remarks deal with all of them, albeit concisely.

31. Separately, I was assisted by other first instance sentencing judgments with regard to the same offence from throughout Australia provided by the parties. But because they were a guide only, and each case must turn on its own facts and an instinctive synthesis of those facts, I shall not trouble to detail them further.

32. Finally, I am aware that I am constrained by statute to impose a non-parole period; that it must be three quarters of the head sentence; and that it may have been difficult for the offender to have achieved release to parole. Having said that, in accordance with the position of the parties, I have simply exercised the sentencing discretion, without any adjustment for any of those statutory constraints.

Concluding synthesis

33. In short, a serious offence of sincerely seeking to persuade others to commit political violence was committed by way of a course of conduct adopted by a right-wing extremist. Despite the modest maximum penalty, it must result in a period of full-time incarceration. Having said that, it was committed by a very young man, of prior good character, who possessed a distorted personality as a result of his deprived and unsatisfactory upbringing. He regrets, at least in a self-centred way, what he did, but one cannot go further in terms of being satisfied of true repentance of what he has done, or rejection of his previous political views. His period of incarceration so far has been extremely onerous. And the future, for many reasons, remains uncertain. My sentence seeks to reflect that multitude of countervailing factors.

Orders

1. Joshua Bruce Lucas, you are convicted of the offence of advocating a terrorist act.

2. You are sentenced to imprisonment for 2 years that commenced on 14 March 2020 and expired on 13 March 2022, with a non-parole period of 1 year 6 months that expired on 13 September 2021.

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Decision last updated: 09 November 2023