AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 9 September 2022

R v J Lucas

[2022] NSWSC 1206

Public order & justice offences
CRIMINAL LAW O FFENCES SENTENCE WING EXTREMISM NO PREVIOUS CRIMINAL HISTORY 19 PANDEMIC

Citation: R v J Lucas [2022] NSWSC 1206
Court: Supreme Court of New South Wales
Date: 9 September 2022
Judge(s): Button J

Background

The offender, a young man aged 20 to 21 at the time of the relevant conduct, faced two counts on indictment in the Supreme Court at Parramatta. The first alleged acts in preparation for or planning a terrorist act; the second alleged that he had sincerely advocated the doing of a terrorist act by another person, knowing there was a substantial risk that the other person might act on that advocacy.

The jury returned a unanimous guilty verdict on the second count in June 2022. The first count resulted in a hung jury, with a retrial anticipated. The sentencing proceedings before Button J concerned only the advocacy count.

The offending spanned a period of approximately one year, from March 2019 to March 2020. During that time, the offender was active in online chat groups associated with right-wing extremism, on multiple occasions sincerely urging others to commit acts of political violence.

  • What were the objective features of the offending, and how serious was this particular instance of advocating a terrorist act?
  • What weight should be given to the offender's youth, deprived upbringing, psychological difficulties, and conditions of custody as mitigating factors?
  • Whether the absence of demonstrated remorse or renunciation of extremist views affected the sentencing outcome.
  • What sentence appropriately reflected the principles of denunciation, deterrence, punishment, and rehabilitation in the circumstances?

Decision

Button J found that the offending was serious. On at least several occasions, the offender sincerely sought to persuade others to commit acts of political violence, motivated by genuine right-wing extremist views that included pronounced racism, virulent antisemitism, admiration for Nazism, and admiration for the perpetrator of the Christchurch massacre. The court rejected a submission that the advocacy lacked an underlying ideological motivation, finding instead that the offender shared the extremist views of those he was seeking to persuade.

The court identified significant mitigating factors. The offender was very young at the time of the offending, had no prior criminal record, and had suffered a chaotic and deprived upbringing that contributed to psychological difficulties and social isolation. His online life filled a void left by unemployment, lack of education, few friendships, and no intimate relationships. Button J accepted that while none of this excused the conduct, it went a considerable way to explaining it.

The offender's conditions of custody were described as profoundly isolating, beyond even the usual constraints applied to those charged with terrorism offences. He had been denied contact with any other prisoner, had not seen either parent in two and a half years (including by video link), and had endured the additional strictures of COVID-19 pandemic restrictions. Button J drew a strong inference that the offender had come to regret his actions, at least in a self-centred way, though the court could not be satisfied of genuine remorse or renunciation of his prior views.

Weighing those competing factors, the court imposed a two-year sentence backdated to the date of arrest. Button J noted the maximum penalty for the offence is five years imprisonment, and that this was a serious example of a serious offence warranting full-time incarceration, though the sentence was moderated by the cumulative weight of the mitigating circumstances.

Orders Made

  • The offender was convicted of the offence of advocating a terrorist act.
  • Sentenced to imprisonment for 2 years, commencing 14 March 2020 and expiring 13 March 2022.
  • Non-parole period of 1 year and 6 months, expiring 13 September 2021.

Key Takeaways

  • Advocating a terrorist act carries a maximum of five years imprisonment with no standard non-parole period and no mandatory minimum; the Supreme Court confirmed the threshold for full-time incarceration was clearly met on the facts here.
  • A course of online conduct spanning approximately one year, on multiple discrete occasions sincerely urging others to commit political violence, constituted a serious example of the offence even where much of the surrounding material was described as incoherent or self-aggrandising.
  • Youth, prior good character, a demonstrably deprived upbringing, and resulting psychological difficulties were treated as significant mitigating factors, capable of explaining (though not excusing) how the offending occurred.
  • Exceptionally harsh conditions of custody, including complete isolation from other prisoners and denial of any parental contact for over two years, were taken into account as a distinct mitigating consideration bearing on the weight of the sentence.
  • In the absence of firm evidence of remorse or renunciation of extremist views, the sentencing court nonetheless drew an available inference of regret from the totality of the offender's experience in custody, characterising the prospects of rehabilitation as guarded.

Legislation and Cases Referenced

The judgment did not cite specific legislation or cases by name in the portions available. The offence is an Australian Commonwealth offence of intentionally advocating a terrorist act (carrying a maximum of five years imprisonment). Button J noted reliance on Commonwealth sentencing principles and first-instance sentencing decisions from other Australian jurisdictions concerning the same offence, without detailing them individually.