Citation: R (Cth) v Jakovac [2022] NSWDC 579
Court: District Court of New South Wales
Date: 25 July 2022
Judge(s): Buscombe DCJ
Background
The offender was a young male who, between January and December 2020, administered a white supremacist Telegram channel and associated chat group that he had created in October 2019 when he was 17 years old. Using pseudonyms, he posted and forwarded material glorifying mass casualty terrorist attacks, including footage from the 2019 Christchurch mosque attacks, manifestos of far-right extremist killers, and explicit calls for racially motivated violence. The channel had 434 subscribers and the linked chat group had 117 members at the time of his arrest.
The offender was arrested on 9 December 2020 and, by the time of sentencing, had been in continuous custody for approximately 19 months. He pleaded guilty to one charge of intentionally advocating a terrorist act or terrorism offence while reckless as to whether another person would engage in such conduct. He had no prior criminal record.
The offender was found to have a cognitive impairment. Sentencing proceeded on the basis of an agreed statement of facts running to 99 paragraphs, supplemented by extracts from his police record of interview.
Legal Issues
- What is the appropriate sentence for an offence under s 80.2C(1) of the Criminal Code Act 1995 (Cth) of intentionally advocating a terrorist act while reckless as to third-party engagement?
- What weight should be given to the offender's youth and cognitive impairment in assessing moral culpability?
- What discount should apply for the utilitarian value of a guilty plea?
- How should the mandatory minimum non-parole period requirement interact with the total sentence imposed?
- What significance, if any, attaches to the absence of rehabilitation programmes during pre-sentence custody?
Decision
Buscombe DCJ assessed the nature and circumstances of the offending as serious. The offender systematically created, curated, and distributed content designed to glorify terrorist violence and incite racial hatred over an extended period. Posts included footage of the Christchurch attacks with commentary celebrating the perpetrator, stated intentions to commit mass shootings, and the distribution of extremist manifestos. The objective seriousness of the conduct was significant given its reach, its duration, and the deliberate nature of the platform the offender constructed.
Against that objective gravity, the court gave meaningful weight to the offender's youth and cognitive impairment in reducing his assessed moral culpability. The offender was 17 when he created the channel and 18 when the charged conduct began. Both the Crown and the defence accepted that his youth and cognitive limitations bore on his culpability, and the court agreed. The guilty plea attracted a 25% discount for its utilitarian value, applied to a starting point of two years imprisonment.
The court expressed genuine concern about the absence of any rehabilitation programming during the offender's pre-sentence custody, noting that he would be released at sentence expiry without having completed any intervention and without being subject to parole supervision. Buscombe DCJ stated clearly, however, that this circumstance could not justify artificially inflating or reducing the sentence the court considered appropriate on proper sentencing principles.
Under the Criminal Code, the court was required to impose a non-parole period of at least three-quarters of the total sentence. Applying that requirement and the 25% plea discount to the two-year starting point, the court imposed a sentence of 18 months imprisonment with a non-parole period of 14 months (recorded in the formal orders as 1 year 2 months). Both periods had already expired by the time the judgment was delivered, as the sentence commenced on the date of arrest in December 2020.
Orders Made
- The offender was convicted of the offence of advocating the doing of a terrorist act or commission of a terrorism offence.
- A sentence of 1 year and 6 months imprisonment was imposed, with 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.
Key Takeaways
- The District Court confirmed that online advocacy of terrorist violence through a curated extremist platform, sustained over nearly a year and accessible to hundreds of subscribers, constitutes objectively serious offending under s 80.2C(1) of the Criminal Code Act 1995 (Cth), even where no physical act of terrorism occurs.
- Youth and cognitive impairment are recognised mitigating factors capable of meaningfully reducing an offender's moral culpability, even in the context of terrorism-related offending, consistent with principles from Bugmy v The Queen and related authorities.
- A mandatory non-parole period of three-quarters of the total sentence applies to this class of offence under the Criminal Code, constraining the court's usual discretion in setting parole terms.
- The absence of rehabilitation programmes during pre-sentence custody, while a matter of genuine concern identified by the sentencing judge, does not constitute a basis for adjusting the sentence that would otherwise be appropriate.
- Buscombe DCJ explicitly noted that delays in the criminal justice system arising from COVID-19 had compounded the rehabilitation gap for this offender, suggesting systemic attention may be warranted for similarly situated young offenders awaiting sentence.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 80.2C(1), 80.2C(2)
- Crimes Act 1914 (Cth), ss 16A, 16A(2)(m), 17A
Cases:
- 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