Homewood v R

1. [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. [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. [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. [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. [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. [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. [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. [8]

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

9. [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. (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. (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. [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. [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. [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. [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. [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:

15. [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. [16]

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

17. [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].

18. [18]

    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.

19. [19]

    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

1. [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.

2. [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.

3. [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.

4. [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.

5. [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”.

6. [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.

7. [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:

8. [27]

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

The sentence hearing

1. [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.

2. [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.

3. [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.

4. [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.

5. [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”.

6. [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.

7. [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”.

8. [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.

9. [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.

10. [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”.

11. [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”.

12. [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:

13. [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.

14. [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.

15. [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.

16. [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:

17. [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.

18. [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:

19. [46]

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

20. [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.

21. [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.

22. [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.

23. [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:

24. [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 Act 1914, 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].

25. [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:

26. [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).

27. [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

1. [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.

2. [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:

3. [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:

The application for leave

1. [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.

2. [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:

3. [60]

   In relation to the third step, the plurality said:

4. [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.

5. [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.

6. [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.

7. [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]:

8. [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.

9. [66]

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

10. [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.

11. [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:

Consideration

1. [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.

2. [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

1. [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

1. [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.

2. [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.

3. [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.

4. [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.

5. [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.

6. [77]

   I propose the following orders:

7. [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.

8. [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.

9. [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.

10. [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.

11. [82]

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

12. [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.

13. [84]

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

14. [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.

15. [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.

16. [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.

17. [88]

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