R (Cth) v Jakovac

District Court of NSW|2022-07-05

Mr T Quilter (Offender) File Number(s): 2020/00349632

Introduction

The offender Tyler Jakovac is to be sentenced having pleaded guilty to an offence that between 16 January 2020 and 8 December 2020 he did intentionally advocate the doing of a terrorist act or the commission of a terrorism offence referred to in s 80.2C(2) of the Commonwealth's Criminal Code being reckless as to whether another person would engage in a terrorist act or commit a terrorism offence referred to in that provision of the Criminal Code. That is an offence under s 80.2C(1) of the Criminal Code and has a maximum penalty of five years imprisonment and/or a fine equivalent to 300 penalty units. The offender is to be sentenced pursuant to Pt 1B of the Commonwealth Crime Act and in particular s 16A. Section 16A sets out a number of matters which the Court must take into account when imposing sentence insofar as they are relevant and known to the Court.

Objective Seriousness

I will now consider the objective seriousness of the offence. Later in these remarks, once I have reviewed the offender's subjective case, I will then address the closely related issue of the offender's moral culpability, his moral blameworthiness, for the offending.
Before considering the objective seriousness of the offence, it is appropriate that I set out briefly what appear to be accepted principles to apply when sentencing for terrorist offences. The principles are essentially derived from Justice Bellew's decision in the The Queen v Uweinat [2021] NSWSC 1256 which I was informed is the only previous sentencing judgment concerning an offence under s 80.2C(1) of the Code and Justice Hamill's judgments in The Queen v Dakkak [2020] NSWSC 1806 and The Queen v Taleb (No 5) [2019] NSWSC 720.
The predominant considerations in sentencing an offender charged with a terrorism related offence include the protection of the community, punishment of the offender, denunciation of the offence, specific and general deterrence. Where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance. The ideological motivation of the offender is relevant to a consideration of the issue of community protection, as well as to an assessment of the objective gravity of the offending.
The depth and extent of the radicalisation of an offender as demonstrated for example by the possession of extremist material, or the communication of extremist views to others, is relevant to the assessment of the objective seriousness of the offending and will be a significant factor when considering rehabilitation and dangerousness. The objective seriousness of a terrorism related offence may be affected by the extent to which the offender has been responsible for indoctrinating or attempting to indoctrinate others, and the vulnerability of those others.
Youth may be relevant to an assessment of an offender's moral culpability, however, where there is an absence of any causal link between an offender's age and the criminal conduct and where the offending is serious, the principles concerning the relevance of the offender's youth and sentencing must be appropriately moderated. Subjective circumstances and mitigating factors including rehabilitation are to be given less weight than might otherwise be the case when sentencing for other offences.
I'll now turn to specifically consider the objective seriousness of the offence committed by this offender. The offence for which the offender is to be sentenced involved the offender advocating the doing of a terrorist act; or the commission of a terrorism offence, if the offence concerned fell within a particular definition, and in engaging in that conduct was reckless as to whether another person would engage in a terrorist act or commit a terrorism offence referred in the provision.
Recklessness for the purposes of this offence means the offender was aware of the substantial risk that a person would engage in a terrorist act or commit a relevant terrorism offence, and having regard to the circumstances known to him, it was unjustifiable to take the risk. Any form of terrorist offence is obviously serious, as terrorism in the modern world is one of the greatest threats to the values of western liberal democracies such as Australia and the freedom that we all expect to enjoy.
The risk of carnage to both persons and property is also another factor that underlies the seriousness of such offences. In the 1930s and 1940s in Germany, the world witnessed the calamity that can occur when violent far‑right extremism is able to overturn democratic government and the rule of law. It is more than a reasonable inference that the advocacy of terrorism heightens the probability of terrorist acts or the commission of terrorism offences on Australian soil and again underlines the seriousness of the offence for which the offender is to be sentenced.
While the offence for which the offender is to be sentenced remains a serious offence, in terms of the range of seriousness of the terrorism offences provided for in the Commonwealth's Code, the maximum penalty being 5 years imprisonment, means that the nature of the offence is considered to be less serious than many other terrorist offences.
The offender's offence involved multiple acts of advocacy over a period of approximately 11 months. His advocacy was limited to his online activities, however the second reading speech concerning the introduction of the offence creating provision indicates that the Commonwealth parliament was concerned about the use of social media to accelerate the spread at which persons can become radicalised and prepare to carry out terrorist acts.
The second reading speech also stressed the compounding effect of the circulation of graphic violent imagery in the same online forums as where the statements of advocacy are made. Here, the offender circulated online graphic imagery of violence, along with his messages, on numerous occasions.
The agreed facts demonstrate that the offender in his online forums and other online activities enthusiastically endorsed and promoted violent extreme right‑wing views and ideologies and persistently encouraged and urged the carrying out of terrorist acts against specific groups within our society. By his plea, he acknowledged that he did so aware of the substantial risk that a person would engage in a terrorist act or commit a relevant terrorism offence as a consequence of his advocacy.
The offender's advocacy involved both general distribution of material via social media, as well as personal communication from individuals. He created a dedicated channel and chatroom to facilitate his advocacy. The number of persons who subscribed to his channel and viewed his posts was relatively limited. It was not in the tens or hundreds or thousands. Much, but not all, of the material the offender posted, was created by others and reposted by him.
There is no evidence that any act of violent terrorism occurred as a consequence of the offender's advocacy. While I am satisfied that the offender did have the relevant recklessness required for the commission of the offence, I am not able to be satisfied beyond reasonable doubt that he had an intention to cause another person to engage in a terrorist act or offence. That is primarily because of his age and immaturity and the fact that while he spoke in his online posts about violent weapons and making bombs, nothing along those lines was found when the police searched his premises.
I am also left with a sense that much of what the offender said in his online posts was said to try to fit in with the extreme right-wing community he had joined online, because he had been unable to fit in anywhere else. An assertion in one of his posts concerning an attack on Mrs Merkel, the then German Chancellor, given he was an 18 year old sitting in front of a computer in the NSW country town of Albury, to my mind had an air of fantasy about it. When I say computer I include a mobile phone.
The offender was, on the material, not a member of a prescribed terrorist organisation, and had no access to explosives and posted material solely online. It is effectively unknown as to whether his advocacy achieved its objective but that does not, in my opinion, lessen the objective criminality of these offences.
The Crown submitted that the offender's offence fell within the mid-range of conduct contemplated by s 80.2C(1) of the Code. The offender's counsel submitted that the offence falls below the mid-range for offences of this type.
While strictly speaking it is not necessary for me to grade the offence along some notional range of objective seriousness, I am of the opinion that the offence falls a little below a notional mid-range offence.

The Offender's Subjective Case

I will now consider aspects of the offender's subjective case. Under s 16A subs (2)(m) of the Commonwealth Crimes Act, I am required to consider the offender's character, antecedents, age, means and physical and mental condition and I propose to consider those matters now.
The offender is currently twenty years of age and was nineteen years of age during the period of the offences. He is what the law calls a "young adult offender", and the principles applicable to the sentencing of young adult offenders apply here. Those principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing such a young adult offender. See the summary of relevant principles in Bullock v R [2016] NSWCCA 131 referring to BP v R [2010] NSWCCA 159. I referred earlier to the general principles concerning the relevance of youth when sentencing for terrorism offences and that in some circumstances there is a modification of the general principles that I have just referred to. Here, however, when I consider all the evidence before me, in particular the evidence contained in Mr Sheehan's report which I will review in detail shortly, I consider that there is a causal link between this offender's young age and immaturity and the offence he has committed. His young age, and associated immaturity is therefore a factor that reduces his moral culpability or blameworthiness for the offence.
The offender has no prior criminal history and I consider that entitles him to some leniency here.
The following documentary material was placed before me in relation to the offender's subjective case:
A report from Mr Patrick Sheehan, a Forensic Psychologist, dated 7 June 2022, and Mr Sheehan was cross-examined on his report by the Crown. Mr Sheehan had conducted an audio-visual assessment of the offender on 3 June 2022. At the time of his assessment, he did not have the interview the police conducted with the offender on 9 December 2020, but did by the time he gave evidence. He confirmed in his oral evidence that the content of the interview did not cause him to change any opinions he expressed in his report.
An affidavit of James Payten, the offender's solicitor, affirmed on 1 July 2022 was read and ultimately paragraph seven, and annexure A to that affidavit was not pressed, it having been objected to by the Crown. Mr Payten was not required for cross-examination.
An affidavit of the offender's mother, Jane Lovelock, affirmed on 4 July 2022 was read, and Ms Lovelock gave oral evidence and was cross-examined by the Crown. I do not have a transcript of the evidence of Mr Sheehan and Ms Lovelock at the time of the delivery of these remarks on Sentence.
The offender's counsel, as I mentioned earlier, also tendered extracts of the video interview conducted with the offender by the police on 9 December 2020.
The offender did not himself give evidence on sentence and I have taken that into account when assessing what weight to give to statements he has made about his involvement in the offence to third parties. I record that there was nothing about the evidence of his mother which caused me to have any concerns about the truthfulness of her evidence; similarly in relation to the evidence of Mr Sheehan.
Turning then to the evidence concerning the offender's family background. Ms Lovelock's evidence was that she remained in a relationship with the offender's father for five years after the offender was born.
Ms Lovelock detailed the offender's father's battle with the drugs cannabis and heroin in her evidence. When the offender was four or five years of age, the family was living in Melbourne after the offender's mother had separated from his father. Ms Lovelock was raising another son and twins and holding down employment with assistance from her sisters and other family members. From time to time while in Melbourne, the offender and his brother would stay with the offender's father and his new partner.
After Ms Lovelock had moved to Albury, there were occasions when the offender would stay with his father in Melbourne. On one such visit, Ms Lovelock determined that the father was using illicit drugs around the children and the visits then ceased, although the father did come to Albury to spend time with the offender.
In 2006, according to Ms Lovelock's evidence, she commenced a new relationship with a man, "Who was in and out of gaol a lot", including for offences he had committed against her. Ms Lovelock detailed in her affidavit, domestic violence perpetrated upon her in the family home during that relationship, resulting in her leaving him. The offender would, around that time, spend time with his paternal grandmother and great grandmother.
The offender's mother's evidence was that around ten years of age, the offender started to be obsessed with Russia and Slavic culture after spending time with his paternal grandmother. Ms Lovelock described having some concern about the influence of the grandmother around that time. Her evidence was that the offender would through his teens talk, "nonstop" about that issue and told her he wanted to join the army and fight for Russia. The mother's evidence was that around that time she wondered if the offender had "Asperger's".
The offender's mother gave evidence that until the offender was sixteen years of age, she did not have the internet on at home, but that the offender's paternal grandmother had given him a phone with an internet plan and he had been able to use the internet at the grandmother's home. Ms Lovelock's evidence was that when the offender was sixteen, seventeen and eighteen years of age, he withdrew from life to some degree and did not like socialising at all. Her evidence was that the offender left school; did not want to work and repeatedly talked about joining the army.
The offender's mother travelled from Albury to Parramatta for the two days of the sentencing hearing on the fourth and fifth of this month. Her evidence was that was the first time she had seen her son since his arrest. However, in her affidavit she detailed that she has phoned him every day that he has been in custody and that they remain very close.
The offender gave a history of his family life to Mr Sheehan which was, generally speaking, consistent with the evidence of his mother. He recalled to Mr Sheehan that his parents had separated when he was four years of age and he had no memory of them being together as a family unit. He said he stayed with his mother who re-partnered with an abusive male who was domestically violent. The offender recalled to Mr Sheehan that his mother's relationship with that man ended when he was in the third grade. The offender recalled that he had been raised with his brother and half-sister; that his mother worked in retail, and he recalled problems associated with poverty, with the family living in unstable housing for an extended period. He recalled that his uncle lived with the family for a year but that he was unstable due to drug addiction. He confirmed that his mother had re-partnered in 2019 and that he has a positive relationship with that man. According to what the offender told Mr Sheehan, he has remained in regular contact with his father, staying with him on holidays and weekends and said his father had a history of abusing illicit substances and on occasions, in the offender's presence.
Turning then to the offender's education and employment history. Ms Lovelock described the offender as well behaved in primary school but was concerned that he was falling behind as he appeared unable to concentrate on anything, and appeared disinterested. Her evidence also was that she began to notice obsessive compulsive behaviours in the offender when he was about five years of age; for example that he had a routine of touching the corners of the couch every day, with that routine lasting for over twelve months. Ms Lovelock's evidence was that she around that time, took the offender to see a psychologist for a brief period, but she had no recollection of there being any formal diagnosis given to her.
According to Ms Lovelock's evidence, the offender performed poorly in high school and struggled to keep up. While she had no memory of any teacher suggesting that the offender suffered from autism, she did recall derogative comments made by other students along those lines. Consistent with the evidence given by his mother, the offender described to Mr Sheehan a difficult school experience. He said he was in mainstream classes and did not repeat years but reported some learning difficulties, having a tutor sit in class with him. He told the psychologist he had trouble writing, he struggled socially and felt bullied and excluded. The offender reported that he and his mother were told that he was autistic but that they rejected that. The offender said that in high school his literacy developed, but he disliked school intensely. He was said to engage in regular truancy and was suspended on one occasion. He completed Year Ten and discontinued school mid-way through Year Eleven.
According to what the offender told Mr Sheehan, he entered an apprenticeship in commercial cookery, attending TAFE and worked in an Italian restaurant, maintaining that employment for about two years until his arrest. He told Mr Sheehan that he had always had aspirations to enter the Army, and had applied when 17 but it appears he never pursued the application. Mr Sheehan considered that the offender's discourse on that topic "almost seemed a fantasy of being strong, capable and confident".
Ms Lovelock in her evidence described the offender obtaining a job as a chef at a local restaurant which was taken over by an Indian family and some workers were of the Islamic faith. Her evidence was that she observed that the offender had a good relationship with the Indian workers at the restaurant, he had no difficulties at work, he would often be driven home by a co-worker, as he himself had never obtained a licence. The offender told Mr Sheehan that he had positive relationships with his co-workers of Indian background, but never associated with them outside of the workplace.
The offender denies any issues with illicit substances and reported a modest use of alcohol. He did tell the psychologist that he had consumed four beers on the night he made the Snapchat post on 7 December 2020, which read, "I'm actually going to commit a massive national tragedy".
I turn then to consider his psychological history. The psychologist recorded that the offender denied any history of the symptoms of psychosis and has never been made a psychiatric inpatient. The offender reported having been unhappy since middle childhood, seeing himself as inadequate and out of place. Mr Sheehan reported that the offender described pervasive feelings of alienation, anxiety and inadequacy and said he "never fitted anywhere, I don't belong". The psychologist recorded that the offender said he always felt ill at ease and inferior in social settings, not knowing how to interact with others, and reported being bullied throughout his schooling, particularly in high school. He was said to never have been invited to parties, had no interest in activities that brought children together such as sports, was small, thin, feeling physically inferior to his peers.
The offender told the psychologist that he had been experiencing suicidal ideation from the age of 15 years. During the sentence hearing, I observed the offender in the dock to appear to be highly stressed to a greater degree than I have observed in other offenders over many years. He sat for much of the proceedings with his head down and his hands clasped to his head. In discussing with the psychologist his involvement with the far right, the offender described his attachment to Slavic culture and that his connection with people on the internet with far-right views meant that he "felt recognised" and that he wanted to impress such people, that he felt more powerful by his association with such people and had an opportunity to express his anger.
Mr Sheehan records that the offender fantasised about being strong and respected through his identification with Slavic culture; that he projected insecurities on to a racist belief system and that he had found an outlet for his anger and dark thoughts through the posting of hateful comments. Mr Sheehan records that, consistent with the Justice Health file concerning the offender, he experienced an acute emotional collapse on his admission to custody, presenting as suicidal and scoring in the 'severe' range on measures of duress, distress and depression. Mr Sheehan records that risk intervention team protocols within the gaol were activated, but by 7 January 2021, the offender appeared more settled. The records indicate that a psychiatrist had expressed the opinion the offender was "likely on the autistic spectrum".
Upon presentation for his assessment, Mr Sheehan considered that the offender appeared younger than his age in both physical appearance and manner. The offender was recorded as speaking in a flat and monotonous way and showed little facial expression. There was said to be no evidence of thought disorder, but he appeared primarily depressed and anxious and was openly tearful on occasion. The offender rocked back and forth when interviewed, appearing to comfort himself while doing so. He reported ongoing suicidal ideation but not in the immediate term and told the psychologist that he thought of suicide every day. No intelligence testing was conducted with the offender, but Mr Sheehan considered that he appeared to be of low average functioning consistent with his education and achievements.
Mr Sheehan expressed the opinion that the evidence "points towards the presence of autistic spectrum disorder requiring support without intellectual impairment or language impairment as the primary diagnosis". In his cross‑examination, the psychologist confirmed that this was a formal diagnosis that he had made concerning the offender and accepted the offender appeared to be at the milder end of the range of the disorder. The psychologist noted that the offender has highly fixated and restricted interests, in particular his fixation on race and lineage. He considered there was no evidence of anti-social personality disorder. Mr Sheehan expressed the opinion that there was a connection between the offender's Autistic Spectrum Disorder and the offender's resultant vulnerabilities, with the commission of the offence, being his need for belonging, coupled with poor social judgment, grievance and social alienation, obsessive interest combined with fantasies of strength and unexpressed anger.
The offender's beliefs in violent extremism Mr Sheehan considered would have been formed through a combination of tensions between his weak self-image and his desired self-image, escaping feelings of social rejection and powerlessness by identification of idealised strength through ideas of racial purity, allowing him to project his unexpressed anger to a target driving an obsessive and morbid interest in ideological violence where he could feel powerful and accepted by other racist men.
I also note, consistent it seems to me with Mr Sheehan's opinion, the offender on more than one occasion said to the police in his interview that he made certain posts in order to fit in or to belong.
I am satisfied that the evidence of both the offender's difficult upbringing in which he was exposed to a degree of domestic violence and drug taking within the family home and of his mental health, being his autistic spectrum disorder, also reduces his moral culpability for the offence. In a well‑known passage from R v Millwood [2012] NSWCCA 2 Justice Simpson, as her Honour then was, with whom the remainder of the Court agreed said: "I am not prepared to accept that an offender who has the start in life the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal or advantaged upbringing'. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his or her behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility but I consider that the DPP submissions significantly underestimates the impact of a dysfunctional childhood."
Her Honour's observations have in essence been approved in the well‑known High Court decision in Bugmy v The Queen [2013] HCA 37. The facts concerning the offender's background fall squarely, in my view, within the principles outlined by Simpson J in Millwood.
The relevance of an offender's mental health to sentencing is well known. The principles in relation to the relevance of a person's mental health to sentencing was summarised in the DPP v De La Rosa [2010] NSWCCA 194: "Where the state of a person's mental health contributes to the commission of the offence in a material way the offender's moral culpability may be reduced, consequently the need to denounce the crime may be reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. It may mean that a custodial sentence will weigh more heavily on the person because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced. It may reduce or eliminate the significance of specific deterrence. Conversely, it may be that because of a person's mental illness they present more of a danger to the community. In those circumstances considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an anti-social personality disorder there may be a particular need to give consideration to the protection of the public."
The evidence establishes that the offender does not have an anti‑social personality disorder, so in my view the final De La Rosa principle has no application here.
Mr Sheehan's report and the nature of the offending, establishes that the offender's autistic disorder has a causal link to the offending in that his isolation in society, his vulnerability, coupled with poor social judgment, grievance and social alienation, obsessive interest combined with fantasies of strength and unexpressed anger led to him engaging in his on‑line advocacy. These factors, along with his youth and immaturity, all reduce his moral culpability for the offence, in my opinion.
I now propose to consider the degree to which the offender has shown contrition for the offence and his prospects of rehabilitation. In the offender's record of interview with the police, there were some statements that fall within the concept of contrition for some aspects of his offending conduct.
For example, the comments he made to the police expressing shame for some of the posts he had engaged in and that he hated himself for them. Having watched excerpts from the interviews where some of those comments were made, in my opinion, the offender appeared to be genuine when he made those statements. Mr Sheehan records that the offender acknowledged his offence consistent with the agreed facts that are before me. The offender was said to be comfortable about what he had found reinforcing about his exchanges with the other people on-line, finding acceptance and strength but underplayed the hatefulness and violence of the beliefs he expressed. The offender denied that he had any intention of carrying out a national tragedy.
Mr Sheehan records that the offender said he no longer adheres to the racist views and that the events of 2020 have dismantled his previously idealised view of Russia and Ukraine as some form of utopia. As the offender has not given evidence on sentence, these assertions have not been tested before me.
In 2020, the offender's mother commenced a relationship with a pro‑social partner, and her evidence was that the offender got along with her new partner well before he was arrested. That partner has now moved in with the offender's mother and her two other children. His mother remains supportive of the offender and is willing to provide him with a home when he is released from custody.
While Mr Sheehan acknowledged that his report did not constitute a comprehensive risk assessment of the offender being a danger to the community, he did express the opinion that the extreme views about the use of violence to achieve an ideological aim expressed in many of the offender's online posts has softened since his arrest, and that the offender has not "dug in" in the way the psychologist has observed with other extremist offenders.
Mr Sheehan considered that the offender did not view himself as a martyr for his cause. The psychologist considered that the offender's motivation "would appear mostly underpinned by group belonging, search for meaning and acquisition of status, and to a lesser degree moral superiority and glorification". In cross-examination, Mr Sheehan expressed the opinion that overtime it would appear the offender's extremist views have softened. The psychologist accepted that there was some doubt as to whether the offender has truly renounced his extremist views but said that is always the case with such offenders.
The offender entered an early plea of guilty and I will consider its utilitarian value shortly. Overall, I consider there is some evidence of contrition here given his early plea of guilty, some of the comments in his ERISP, in his interview with police, and the observations of Mr Sheehan. I am unable to be certain that the offender no longer adheres to many of his extreme right‑wing views about race, religion and sexuality, that is because he did not give evidence on sentence so his assertions to Mr Sheehan have not been tested under cross-examination, as I say.
I am satisfied, however, that there has been at least a softening of those views that he held at the time of the commission of the offence. He is young, would now appear to have stable family support, no prior record and the ability to hold employment. I consider he has reasonable prospects for rehabilitation. It is important I think to say something about the conditions of his custody.
I recorded earlier that the first time the offender's mother had seen him since his arrest was in the Court room when the sentence hearing was conducted. He is permitted to speak on the phone to his mother, brother and sister, but only by way of one 7-minute conversation every second day. He does have monthly audio visual visits from his aunt. He is not vaccinated for COVID-19 as he has a needle phobia and will not be permitted in person visits.
The psychologist records that the offender, since his admission to custody, is socially isolated as he is segregated from other prisoners and is frightened by them. He does have video visits with a peer aged girl who had been his girlfriend when he was 13. Mr Sheehan noted that no educational or employment programs have been available to the offender since his admission to custody. He also noted that the offender has incurred no institutional misconduct charges, that he has access to a closed yard most days between 9am and 2pm, but is alone at that time.
The offender reported rolling lockdowns as a consequence of COVID-19. It is well known that conditions of custody for all inmates have been much harsher during the pandemic, with inmates spending longer periods in their cells, few if any in person visits and few if any rehabilitation programs. Unsurprisingly, Mr Sheehan expresses the opinion that the offender is a vulnerable inmate at this point in time.
It cannot be doubted that the conditions under which the offender has been held in custody have been extremely onerous for someone who entered custody for the first time aged 18 and who suffers from autism. I have had regard to those onerous conditions in arriving at the appropriate sentence to impose.

Imposition of sentence

It was common ground that the offender had entered his plea of guilty in the Local Court which was in the early stage of the proceedings. When a person charged with a Commonwealth offence is to be dealt with in this Court by way of sentence, enters a plea of guilty in the Local Court, they should generally be provided by the sentencing judge with a 25% discount of their sentence for the objective utilitarian value of their plea. See Kaurasi v R (Cth) [2020] NSWCCA 253. In accordance with that authority, I will provide the offender with a 25% discount of his sentence for the utilitarian value of his plea.
As I outlined earlier, general deterrence is an important principle to reflect whenever sentencing for a terrorist offence. The public rightly expects the Courts to impose significant sentences on people who commit offences which advocate the commission of violent acts to further ideological causes, completely at odds with the way of life we in western liberal democracies live.
Here, consistent with the principles I outlined earlier from De La Rosa, there is some reduction in the need to reflect general deterrence in this sentence. There is always a need to reflect an element of personal deterrence when sentencing for an offence as serious as a terrorism offence.
Co‑operation with law enforcement agencies in an investigation is another factor I am to have regard to under s 16A of the Crimes Act. The offender provided the police with his mobile phone upon his arrest. He took part in a record of interview with the police from 10.03am until 9.07pm on the day of his arrest answering some 3,950 questions, in which he made a number of relevant admissions against his interest. I have considered his co-operation with the authorities in the general mix of factors I am to consider when imposing sentence upon the offender.
Section 17A of the Commonwealth Crimes Act states, "A court shall not pass a sentence of imprisonment on any person for a Federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case."
Submissions were advanced on behalf of the offender that a sentence other than imprisonment was appropriate in all the circumstances of this case; relying substantially on Justice Hamill's decision in R v Taleb (No 5) [2019] NSWSC 720.
The Crown submitted that the only appropriate sentence is one of imprisonment.
I am of the opinion that the serious nature of the terrorism offence which the offender committed, despite his compelling subjective case, means that the only appropriate sentence is one of imprisonment, especially when I have regard to the principles of general deterrence. The advocacy of terrorist acts and terrorism offences over a period of eleven months is a very serious offence, in my opinion. The fact that, as will shortly be seen, the offender will have served his sentence without having completed any rehabilitation programmes before re-entering the community, and will not be subject to parole as his total sentence will have expired, cannot, in my view, dictate that a lesser form of punishment be imposed. It is unfortunate, and perhaps this case may encourage the provision of appropriate programmes to offenders who have entered pleas of guilty but have not yet been sentenced, especially given the delays in the criminal justice system that have occurred due to the impact of COVID-19.
The fact that the sentence I will shortly impose means the offender will, as I understand it, leave custody, not having been provided with any rehabilitation programmes and will not be the subject of parole, has caused me considerable disquiet. It is not a proper reason, however, to artificially inflate the sentence I consider is the appropriate one to impose.
The offender has been in custody since his arrest on 9 December 2020. His counsel submitted that the period of custody the offender has experienced is: "A substantial period for an eighteen year old offender with a cognitive impairment and no criminal record, who has pleaded guilty to an offence carrying a maximum penalty of five years."
The Crown indicated he agreed with that submission, as do I.
This is an offence whereby under the Code I am required to impose a minimum non-parole period of three-quarters of the total sentence. The maximum penalty has been taken into account as a legislative guidepost. I consider that prior to the application of the 25% discount of his sentence for the utilitarian value of his plea, the appropriate starting point of the sentence is two years imprisonment.
Mr Jakovac is formally convicted of the offence of advocating the doing of a terrorist act or commission of a terrorism offence. I impose a sentence of eighteen months imprisonment with a non-parole period of fourteen months imprisonment. The sentence commenced on 9 December 2020 and expired on 8 June 2022, and the non-parole period expired on 8 February 2022.

Orders 1. Convicted of the offence of advocating the doing of a terrorist act or commission of a terrorism offence. 2. Impose a sentence of 1 year and 6 months imprisonment, consisting of 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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 November 2022

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