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District Court 25 September 2026

R v Ballesty

[2026] NSWDC 352

Public order & justice offences
SENTENCE COMMONWEALTH OFFENCES FAIL TO COMPLY WITH S3LA ORDER IMPORTANCE OF GENERAL DETERRENCE

Citation: R v Ballesty [2026] NSWDC 352
Court: District Court of New South Wales
Date: 25 September 2026
Judge(s): Mahony SC DCJ

Background

A 27-year-old man (the offender) was an active member of several online platforms, including the Discord server "Server Down Under" and multiple accounts on X (formerly Twitter). Over approximately three months in late 2025, he sent racially offensive messages, made threats targeting public officials, and displayed a Nazi salute during a livestreamed Discord call.

When Australian Federal Police executed a search warrant at his home on 21 December 2025 and served an order under s 3LA(6) of the Crimes Act 1914 (Cth) requiring him to provide passwords to his seized devices, the offender refused. He provided the passwords several weeks later after obtaining legal advice.

A psychiatrist, Dr Nielssen, assessed the offender and diagnosed a resolved psychotic episode, cannabis use disorder, and cannabis-related mood disorder, opining that a mental health impairment was present at the time of the offending. The offender pleaded guilty in the Local Court on 27 May 2026 and was sentenced on 28 August 2026, by which time he had spent 254 days in custody.

Legal Issues

  • What was the appropriate objective seriousness for each of the six index offences and the scheduled offence?
  • How did the mandatory minimum sentence of 12 months imprisonment for the Nazi salute offence (s 80.2H(1) of the Criminal Code Act 1995 (Cth)) interact with the aggregate sentencing power under s 53A of the Crimes (Sentencing and Procedure) Act 1999 (NSW)?
  • To what extent did the offender's mental health impairment diminish his moral culpability and affect the weight given to general deterrence, specific deterrence, denunciation, and punishment?
  • What utilitarian discount applied to the early guilty plea, and did the plea also have subjective value?
  • Was a full-time custodial sentence warranted, or was an Intensive Correction Order (ICO) an available and appropriate alternative?

Decision

Objective seriousness across the offences

The court assessed each offence individually. The s 3LA refusal (Sequence 1) was found to be deliberate but not a serious example of its type, noting the offender eventually provided the passwords (at [121]). The carriage service offences ranged in seriousness: Sequences 3 and 6 (the racist Discord messages and the edited image of a senator depicted as a KKK member) were assessed as objectively serious but at the lower end relative to the others (at [122], [126]). Sequence 4 (messages advocating mass killings and deportations) was found to be objectively serious, with the scheduled offence (Sequence 8, sent on the day of the Bondi Beach terrorist attack) adding some accumulation to that sentence (at [123]-[124]). Sequence 5 (the "Face the wall Tony" post directed at the Home Affairs Minister) was assessed as serious given the context of a draft threatening to kill the Minister in Parliament (at [125]). Sequence 9 (the voice call referencing kidnapping the Prime Minister, made the day after the Bondi Beach shooting) was found to be objectively serious, with the timing highlighting but not aggravating the gravity of the conduct (at [127]).

The Nazi salute offence

The court placed the Sequence 11 offence (s 80.2H(1)) in context: the offender performed the salute during a lengthy livestream after engaging approvingly with Nazi propaganda material, while recording himself (at [128]). The recording gave him the potential to further disseminate the material globally. Although the salute itself was momentary, the court found it constituted objectively serious offending, and was not a least-worst case attracting only the mandatory minimum of 12 months (at [129], [96]). The court confirmed, following The King v McGregor [2026] HCA 3, that an aggregate sentence under s 53A of the Crimes (Sentencing and Procedure) Act 1999 (NSW) was available even where one offence carries a mandatory minimum (at [148]).

Mental health and moral culpability

The court accepted Dr Nielssen's diagnoses and his opinion that the offending was directly linked to persecutory beliefs, conspiracy thinking, and emotional instability associated with an emerging psychotic illness (at [141]). Applying the principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, the court found the offender's moral culpability was diminished, which ameliorated the weight given to general deterrence, specific deterrence, denunciation, and punishment (at [146]-[147]). The court also found the offender would experience more onerous custody than the general prison population (at [147]).

Guilty plea and rehabilitation

The court applied a 25% utilitarian discount for the early guilty plea entered on 27 May 2026, and further found the plea reflected genuine acceptance of responsibility and facilitated the course of justice (at [138]). The court accepted the offender was genuinely remorseful and found he had good prospects of rehabilitation and a likely low risk of recidivism, given his lack of criminogenic features and strong pro-social family support (at [144]).

Aggregate sentence and ICO

Applying principles of totality and proportionality, and mindful that online extremist offending is easy to commit, corrosive to community safety and social cohesion, and capable of shaping vulnerable minds, the court imposed an aggregate sentence of 3 years imprisonment (at [152]). The court considered but rejected an Intensive Correction Order, finding that such an order would not be of a severity appropriate in all the circumstances under s 16A(1) of the Crimes Act (at [154]).

Orders Made

  • The offender was convicted of offences in Sequences 1, 3, 4, 5, 6, 9, and 11.
  • An aggregate sentence of 3 years imprisonment was imposed, backdated to commence on 13 January 2026 to account for 254 days already served in custody.
  • A Recognizance Release Order was made under s 20(1)(b) of the Crimes Act 1914 (Cth), to take effect on 12 May 2027 (after 1 year and 4 months), on the following conditions:
  • Good behaviour for 3 years from 12 May 2027.
  • Acceptance of supervision by a Community Corrections probation officer.
  • Compliance with all reasonable directions of the probation officer, including the rehabilitation treatment plan recommended by Dr Nielssen.
  • No interstate or overseas travel without the written permission of the probation officer.
  • The offender was directed to report to City Community Corrections within 7 days of release.
  • The s 16BA Schedule offence (Sequence 8) was certified.

Key Takeaways

  • Under s 80.2H(1) of the Criminal Code Act 1995 (Cth), displaying a Nazi salute during a recorded livestream shared with others online was found to be objectively serious offending, placing the conduct well above the least-worst case that would attract only the mandatory minimum sentence of 12 months (at [129], [96]).

  • The District Court confirmed, consistent with The King v McGregor [2026] HCA 3, that an aggregate sentence under s 53A of the Crimes (Sentencing and Procedure) Act 1999 (NSW) is available for multiple Commonwealth offences even where one carries a mandatory minimum penalty, with the minimum operating as a floor on the indicative sentence for that offence rather than capping the aggregate (at [148]).

  • A mental health impairment present at the time of offending can diminish an offender's moral culpability and reduce the weight given to general deterrence, specific deterrence, denunciation, and punishment when sentencing for Commonwealth offences, applying the principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 (at [146]-[147]).

  • Sending highly offensive or menacing communications within a closed group of like-minded online users is not a mitigating factor; following Hoolash v The King [2026] WASCA 61, the court accepted that such a context may in fact be an aggravating one (at [67], [140]).

  • Recording extremist conduct online, even where the recording is not immediately posted or transmitted, is a relevant aggravating feature because it creates the potential for further dissemination to a global audience (at [129], [136], [140]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Crimes ( Sentencing and Procedure) 1999 (NSW)
- Criminal Code Act 1995 (Cth)

Cases
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Giles-Adams v R; Preca v R [2023] NSWCCA 122; 377 FLR 426
- Hoolash v The King [2026] WASCA 61
- Hurt v The King [2024] HCA 8; 98 ALJR 485
- McGregor v R [2024] NSWCCA 200
- Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4
- R v Van Ryn [2016] NSWCCA 1
- R v Zahab [2019] NSWSC 629
- The King v McGregor [2026] HCA 3
- Trinh v R [2024] VSCA 61
- Vamadevan v The King [2024] NSWCCA 223