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District Court 3 February 2023

R v Homewood

[2023] NSWDC 3

Firearms & weaponsPublic order & justice offences
CRIME SENTENCE TERRORISM OFFENCES

Citation: R v Homewood [2023] NSWDC 3
Court: District Court of New South Wales
Date: 3 February 2023
Judge(s): Colefax SC DCJ

Background

The offender, an Australian citizen born in 1984, was sentenced on two offences following guilty pleas entered in the Local Court. The first offence involved intentionally advocating the doing of a terrorist act or the commission of a terrorism offence, while being reckless as to whether another person would engage in such conduct, contrary to s 80.2C(1) of the Criminal Code 1995 (Cth). The conduct occurred over a period from March 2019 to November 2021.

The offender operated and administered social media accounts across multiple platforms, through which he posted material promoting serious violence against people of various racial, ethnic, and religious backgrounds, in furtherance of extremist right-wing ideology. Analysis of his electronic devices after arrest revealed thousands of posts, photos, and videos. At the time of his arrest, the offender had approximately 1,500 subscribers on one platform alone.

The second offence arose from the same arrest. When police executed a search warrant at the rural NSW property where the offender lived with his parents, they found 8,312 rounds of assorted calibre ammunition stored in his bedroom, rather than in approved storage as required for a firearms licence holder under s 40(1) of the Firearms Act 1996 (NSW). The offender held a valid NSW firearms licence at the time, and the eight firearms found in a dedicated storage cupboard elsewhere in the house were lawfully possessed.

  • The appropriate objective seriousness of each offence within its range.
  • Whether a sentence of full-time imprisonment was required, or whether an Intensive Corrections Order (ICO) was a lawful and appropriate alternative for the Commonwealth terrorism offence.
  • Whether the sentences for the Commonwealth and State offences should run concurrently or with some degree of accumulation.
  • The applicable discount for early guilty pleas.
  • Fixing an appropriate non-parole period for the terrorism offence.

Decision

Colefax SC DCJ assessed the objective seriousness of both offences. The terrorism advocacy offence (sequence 2) was found to be slightly above the mid-range, having regard to the quantity and nature of the postings, the substantial number of recipients, and the extended period of conduct from 2019 to 2021. Both the Crown and defence had submitted it was a mid-range offence, but the judge was not bound by those submissions. The ammunition storage offence (sequence 3) was assessed as well above the mid-range, given the volume of rounds involved.

On the question of an ICO for the terrorism offence, the judge declined to resolve whether one was available at law. His Honour held that, regardless of legal availability, the seriousness of the offending meant that community safety, as the paramount consideration, could not be adequately addressed by a sentence served in the community.

Because one offence was a Commonwealth offence and the other a State offence, an aggregate sentence was not available. The judge considered whether partial accumulation was appropriate but ultimately decided, by reference to the totality principle, that the sentences should be served concurrently.

The offender received a 25 per cent discount on each sentence for early guilty pleas. No conviction is mentioned in the sentencing remarks as the offender did not give sworn evidence; subjective circumstances were placed before the Court through psychological reports and family affidavits. The sentences were backdated to the date of arrest, 23 November 2021, as the offender had been continuously in custody from that date.

Orders Made

  • Sequence 2 (terrorism advocacy, Commonwealth): Term of imprisonment of 2 years 7 months (reduced from 3 years 6 months by 25% guilty plea discount), with a non-parole period of 1 year 11 months commencing 23 November 2021 and expiring 22 October 2023; balance of term of 8 months expiring 22 June 2024.
  • Sequence 3 (firearms storage, State): Fixed term of imprisonment of 8 months (reduced from 12 months by 25% guilty plea discount), commencing 23 November 2021 and expiring 22 July 2022.
  • Both sentences to be served concurrently.
  • Sentences backdated to 23 November 2021.

Key Takeaways

  • The District Court declined to resolve a contested legal question about whether an ICO is available for a Commonwealth terrorism advocacy offence under s 80.2C(1), finding the issue unnecessary to determine where the seriousness of the offending independently precluded a community-based sentence.
  • A sentencing court is not bound by agreed submissions from the parties on objective seriousness, and may assess the offence as more serious than both sides contend.
  • Where one offence is a Commonwealth matter and the other a State matter, an aggregate sentence cannot be imposed; the sentencing court must instead consider whether to accumulate or make terms concurrent, guided by totality.
  • Statements made by an offender to a forensic psychologist, and not tested under oath, may be given little or no weight where the offender elects not to give sworn evidence at the sentencing hearing.
  • General and specific deterrence, together with community protection, were identified as fully engaged sentencing considerations in the context of terrorism advocacy offences, supporting full-time custody in this case.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 80.2C(1) (advocating terrorism), s 101.1(1) (terrorist act), s 101.6(1) (preparing for a terrorist act), s 102.7 (providing support to a terrorist organisation)
- Firearms Act 1996 (NSW), s 40(1) (approved storage obligations for licence holders)

Cases:
No cases were cited in the provided judgment text.