HOOLASH -v- THE KING [2026] WASCA 61

[2026] WASCA 61 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HOOLASH -v- THE KING [2026] WASCA 61 CORAM : QUINLAN CJ THOMSON P SEAWARD JA HEARD : 3 MARCH 2026 DELIVERED : 1 MAY 2026 FILE NO : CACR 48 of 2025 BETWEEN : MUHAMMAD AYMAN AL-HASSAN HOOLASH Appellant AND THE KING Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : LONSDALE DCJ File Number : IND 1723 of 2024 Catchwords: Criminal law – Terrorism offences – Accessing and distributing violent extremist material – Sentencing – Significance of prospects of rehabilitation – Significance of general deterrence – Objective seriousness of offence -- 1 of 64 -- [2026] WASCA 61 Page 2 Legislation: Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 (Cth) Crimes Act 1914 (Cth), s 16A Criminal Code Act 1995 (Cth), subdivision HA, s 474.17, s 474.45B Result: Leave to appeal granted Appeal dismissed Category: A Representation: Counsel: Appellant : S M Whybrow SC & F Faris Respondent : R Sharp KC & A Mossop SC Solicitors: Appellant : Rebus Legal Respondent : Director of Public Prosecutions (Cth) Cases referred to in decision: AH v R [2023] NSWCCA 230 Alou v R [2019] NSWCCA 231; (2019) 101 NSWLR 319 BSN v The State of Western Australia [2025] WASCA 142 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Clarke v R [2023] NSWCCA 170 Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428 Director of Public Prosecutions v Lawrence [2004] VSCA 154; (2004) 10 VR 125 DPP (Cth) v Besim [2017] VSCA 158 DPP (Cth) v MHK [2017] VSCA 157; (2017) 267 A Crim R 235 Elmir v The Queen [2021] NSWCCA 19; (2021) 357 FLR 274 -- 2 of 64 -- [2026] WASCA 61 Page 3 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Impicciatore v The State of Western Australia [2020] WASCA 33 Kabambi v The State of Western Australia [2019] WASCA 44 Lodhi v The Queen [2007] NSWCCA 360; (2007) 179 A Crim R 470 Lyons v The State of Western Australia [2022] WASCA 81 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 MHE v The State of Western Australia [2019] WASCA 133 Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 272 CLR 68 MMA v The Queen [2015] WASCA 177 R v Alou (No 4) [2018] NSWSC 221 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Hutchinson [2018] NSWCCA 152 R v Khazaal [2009] NSWSC 1015 R v Lee [2013] WASCA 216 R v Pham [2015] HCA 39; (2015) 256 CLR 550 The State of Western Australia v BKJ [2018] WASCA 136 The State of Western Australia v Zhuang [2021] WASCA 56 -- 3 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 4 Table of Contents QUINLAN CJ:....................................................................................................................... 5 Introduction and overview ..................................................................................................... 5 Circumstances of the offending and Mr Hoolash's personal circumstances ......................... 7 Sentencing remarks................................................................................................................ 8 Statutory provisions ............................................................................................................. 10 Sentencing for federal offences and terrorism offences generally ...................................... 13 Grounds of appeal ................................................................................................................ 17 Sentencing considerations relevant to s 474.45B of the Criminal Code ............................. 19 Objective seriousness of the offence against s 474.45B of the Criminal Code................... 23 Manifest excess ................................................................................................................... 26 Conclusion ........................................................................................................................... 29 THOMSON P: ..................................................................................................................... 29 Offending conduct ............................................................................................................... 30 Count 1 ............................................................................................................................ 30 Count 2 ............................................................................................................................ 31 Appellant's personal circumstances ..................................................................................... 32 Sentencing Judge's remarks ................................................................................................. 33 Legislative provisions .......................................................................................................... 37 Subdivision HA - Revised Explanatory Memorandum ....................................................... 41 Nature of offence against s 474.45B ................................................................................... 44 Sentencing considerations for terrorism offences ........................................................... 45 General and specific deterrence ....................................................................................... 48 Rehabilitation prospects .................................................................................................. 50 The respondent's 'concession' .............................................................................................. 51 Appeal grounds .................................................................................................................... 52 Ground 1: Objective seriousness of the offending .............................................................. 54 Particular (a) .................................................................................................................... 54 Particular (b) .................................................................................................................... 55 Particular (c) .................................................................................................................... 56 Ground 2: Rehabilitation of little weight ............................................................................. 59 Ground 3: Sentence manifestly excessive ........................................................................... 60 Conclusion ........................................................................................................................... 63 SEAWARD JA: ................................................................................................................... 63 -- 4 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 5 QUINLAN CJ: Introduction and overview 1 In early June 2024 the appellant, Muhammad Ayman Al-Hassan Hoolash, was a member of an online group on the Telegram messaging application, named 'Jamaat al Munsasireen' (Telegram group). The Telegram group was open to the public and had 105 members. Mr Hoolash, who was a young man of 18 years at the time, was an administrator of the group. 2 Between 4 June 2024 and 12 June 2024, Mr Hoolash posted hundreds of written and audio posts to the Telegram group (in excess of 90 written posts and approximately 337 voice recordings). Mr Hoolash's posts contained Islamic extremist rhetoric and grossly offensive material in relation to Jews, Christians and Shia Muslims. He described wishing to rape and kill these, and other people, including obscene descriptions of the rape, enslavement and murder of women and young girls. He glorified the terrorist organisations Islamic State (ISIS) and Hamas. Typical of his rhetoric was 'Imma behead babies like they said hamas did, Everything they accused hamas of doing Im actually gonna do'. 3 In addition to his offensive and extremist rhetoric, and during the same period, Mr Hoolash also posted violent extremist material to the Telegram group in the form of several videos produced (or at least apparently produced) by ISIS. Those videos depicted violent and gruesome murders carried out by ISIS militants, including of them crushing a man's head with a large rock, cutting the throats of four men claimed to be Shia Muslims and the beheading of 'non-believers'. Mr Hoolash also posted a violent extremist video to his Instagram page depicting the killing of 15 men by two men armed with AK47 rifles. That video was also identified with ISIS. 4 Mr Hoolash was charged, and convicted, of two offences against the Criminal Code Act 1995 (Cth) (Criminal Code). First, in relation to his own written and audio posts to the Telegram group, Mr Hoolash was convicted of using a carriage service in a way that reasonable persons would regard as being offensive, contrary to s 474.17(1) of the Criminal Code (count 1). Secondly, in relation to his posting of the extremist videos on the Telegram group and his Instagram page, Mr Hoolash was convicted of transmitting violent extremist material using a carriage service, contrary to s 474.45B(1) of the Criminal Code -- 5 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 6 (count 2). The maximum penalty for each offence was 5 years imprisonment. 5 On 20 March 2025, Mr Hoolash was sentenced by Lonsdale DCJ to a total effective sentence of 3 years imprisonment, with a minimum non-parole period of 23 months. That total effective sentence was made up of a sentence of 2 years and 6 months imprisonment with respect to count 2, and a cumulative sentence of 6 months imprisonment with respect to count 1 (reduced from 1 year and 2 months for totality). 6 Mr Hoolash now appeals the sentence in relation to count 2, on three grounds. First, he contends that the learned sentencing judge erred in assessing the objective seriousness of his offending. Secondly, he contends that her Honour erred by concluding that an offence against s 474.45B(1) of the Criminal Code is one in relation to which rehabilitation can be given little weight. Finally, he contends that the sentence of 2 years and 6 months imprisonment with respect to count 2 was manifestly excessive. 7 While Mr Hoolash's grounds of appeal are concerned exclusively with the sentence with respect to count 2 (the offence against s 474.45B(1) of the Criminal Code), that sentence cannot ultimately be divorced from the total effective sentence and the learned sentencing judge's sentencing remarks as a whole. As her Honour recognised, the offences were clearly related and issues of totality loomed large in the sentencing process. 8 In particular, while the two offences for which Mr Hoolash was convicted were separate, and involved distinctly different offending, the circumstances of the commission of the two offences were closely connected. Indeed, apart from the Instagram post, they formed part of a continuous engagement with the Telegram group, a group of like-minded individuals who shared Mr Hoolash's extremist views. As the learned sentencing judge recognised, the serious risks associated with the dissemination of his hateful and offensive rhetoric (count 1) and the transmission of the violent extremist material (count 2) were the same: namely, contributing to 'a groundswell of hatred which eventually results in the commission of actual violence or terrorism towards certain groups'.1 9 For the reasons that follow, I would dismiss the appeal. The learned sentencing judge did not err in her Honour's assessment of the 1 Sentencing Remarks 69 (WAB 123). -- 6 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 7 objective seriousness of count 2 and she made no error of principle in relation to the significance of rehabilitation in relation to such offences. In relation to ground 3, I accept that, considered in isolation, the sentence with respect to count 2 was heavy, and heavier than I would have imposed. That sentence was, however, softened by what in my view was a comparatively light sentence with respect to count 1 (even prior to its reduction for totality). Indeed, had I been sentencing Mr Hoolash I would likely have arrived at substantially the same total effective sentence, but with a comparatively heavier sentence with respect to count 1. Given the close connection between the two offences, however, I cannot conclude that the learned sentencing judge erred in the approach that her Honour took to the individual sentences. It was open to her Honour to assess their relative seriousness in the way that her Honour did and the individual sentence for count 2 was not plainly unjust or unreasonable. 10 While I would grant leave to appeal on each of the grounds, I would dismiss the appeal. Circumstances of the offending and Mr Hoolash's personal circumstances 11 The circumstances of Mr Hoolash's offending, in relation to both count 1 and count 2, and Mr Hoolash's personal circumstances, are summarised in Thomson P's reasons, which I gratefully adopt. 12 As is apparent from that summary of Mr Hoolash's offending, the violent extremist material posted to the Telegram group the subject of count 2 was interspersed throughout the offensive material posted by Mr Hoolash the subject of count 1. Indeed, it is clear that several of the offensive posts the subject of count 1 directly related to the violent extremist material posted by him. 13 The video of the ISIS militants crushing a man's head with a large rock posted by Mr Hoolash on 4 June 2024, for example, was accompanied by a message stating 'Hes a fucking diseased (sic) motherfucker' and 'the only thing that works against these dogs is to kill them'.2 Mr Hoolash posted that video a second time on 8 June 2024, stating 'I wanna do this'.3 14 Similarly, accompanying the ISIS video of the beheading of 'non-believers' posted by Mr Hoolash on 8 June 2024, were posts by Mr Hoolash stating 'Behead all shias Rape all shia women Violently', 2 Statement of Material Facts (WAB 138). 3 WAB 139. -- 7 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 8 'Make the shia rape their own women Make shia men rape their daughters' and 'Make shia boys rape their mothers And then burn them all alive Even this is too merciful for shia'.4 15 I will return to the significance of the relationship between the posts the subject of count 1 and the posts the subject of count 2 later. Sentencing remarks 16 Thomson P has summarised the learned sentencing judge's sentencing remarks in some detail. I need only draw out a number of features of those remarks that are particularly relevant to the appeal. 17 First, in relation to the seriousness of Mr Hoolash's offending, it is apparent that, while the learned sentencing judge's remarks addressed certain aspects of the two counts separately, her Honour nevertheless recognised that there was considerable overlap in the circumstances that were relevant to their seriousness. 18 It is apparent, for example, that the following remarks address the seriousness of both Mr Hoolash's own offensive posts (count 1) and his transmission of the violent extremist material (count 2):5 Your offending is aggravated by the fact that this was not one-off offending, it was not a momentary lapse of judgment, it represented a sustained course of conduct over a period of eight days. It was aggravated by the fact that the group chat was open to new members and your Instagram profile was open to the public. The communications the subject of count 1 were circulated within what your counsel described as a closed group of like-minded people, rather than more broadly. I do not think that there is any mitigation to be found in that fact. If anything, it makes it worse because the users of that group were likely to have sympathised with the hateful things that you were saying. These offences are what I would term precursor offences. That is they are offences which can occur in an environment which can contribute to a groundswell of hatred which eventually results in the commission of actual violence or terrorism towards certain groups. I do take into account that your offending was not particularly sophisticated and ultimately you were easily detected. You did not try to hide your identity. There is no evidence that you have yet resiled from your extremist views and this is not surprising, given you had been unable to access treatment. 4 WAB 139. 5 WAB 122 - 123. -- 8 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 9 19 It is clear, in my view, that her Honour's characterisation of the offences as 'precursor offences' was applicable to both the offending the subject of count 1 and the offending the subject of count 2. 20 Later in the learned sentencing judge's remarks her Honour addressed the applicable sentencing principles. Given their significance for the grounds of appeal, I set them out in full:6 I turn now to talk about the sentencing considerations relevant to the sentencing of people for the offences of which you have now been convicted. In particular, I want to talk about count 2, which is the new offence created under section 474.45B(1). This was an offence which is denoted as a terrorism offence, and it was enacted to fill a gap in the previous law to create an offence for using a carriage service for possession and disseminating of violent extremist material. As the Second Reading Speech in the Commonwealth [P]arliament recognised, violent extremist material is harmful, because it facilitates radicalisation of terrorists. It encourages the planning of violent acts. These acts can then threaten public safety and Australia's core values and principles, including human rights, the rule of law, democracy, equal opportunity and freedom. While Australians are free to hold and communicate a variety of beliefs, the use or advocacy of violence to promote these beliefs is unacceptable. Violent extremist material adversely affects social cohesion, as it can vilify and portray or encourage violence against certain groups in society. Australians all have the right to live free from discrimination, hatred and violence. So the dominant sentencing considerations for terrorism offences are therefore punishment, protection of the community[,] denunciation of the conduct and both general and personal deterrence. Rehabilitation and personal circumstances of the offender are also relevant but should be given relatively little weight. In my view, this case, consistent with those sentencing principles, calls for sentences of condign punishment. 21 Her Honour then proceeded to impose the sentences for counts 1 and 2, including the adjustments for totality, in relation to which her Honour said:7 Having reflected on the matter, I am satisfied that there should be some cumulation of the sentence to reflect the fact that your offending did involve different conduct, and overall I consider that the offending is deserving of a sentence of three years. However, there should be some reduction for totality, otherwise, in my view, the sentence would be too long. So I propose to reduce the 6 WAB 126 - 127. 7 WAB 127. -- 9 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 10 sentence on count 1 to one of six months for totality, but I will make it cumulative on the sentence of two years and six months on count 2. The resulting sentence, therefore, is one of [three] years. Now, I need to set a non-parole period, and the non-parole period must be at least 75 per cent of the sentence on count 2. I've decided that the appropriate non-parole period is one of 23 months. That is one year and 11 months. So you'll need to serve one year and 11 months before you could be released on parole. 22 I turn to the relevant statutory provisions. Statutory provisions 23 Section 474.17(1) of the Criminal Code, which formed the basis of count 1, is as follows: Using a carriage service to menace, harass or cause offence (1) A person commits an offence if: (a) the person uses a carriage service; and (b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being in all the circumstances, menacing, harassing or offensive. Penalty: Imprisonment for 5 years. 24 Count 2 was an offence against s 474.45B. Section 474.45B, which was introduced by the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 (Cth), provides: Using a carriage service for violent extremist material (1) A person commits an offence if: (a) the person: (i) accesses material; or (ii) causes material, or an electronic link that can be used to access material, to be transmitted to the person; or (iii) transmits, makes available, publishes, distributes, advertises or promotes material or -- 10 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 11 an electronic link that can be used to access material; or (iv) solicits material or an electronic link that can be used to access material; and (b) the person does so using a carriage service; and (c) the material is violent extremist material. Note: A person might commit an aggravated offence if an individual to whom such material is provided, or from whom such material is solicited, is less than 18 years old (see section 474.45BA). Penalty: Imprisonment for 5 years. (2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1): (a) intention is the fault element for the conduct referred to in paragraph (1)(a); (b) recklessness is the fault element for the circumstances referred to in paragraph (1)(c), (3) Absolute liability applies to paragraph (1)(b). 25 'Violent extremist material' is defined in s 474.45A which relevantly provides: (1) Material is violent extremist material if: (a) the material: (i) describes or depicts serious violence; or (ii) provides instruction on engaging in serious violence; or (iii) supports or facilitates serious violence; and (b) a reasonable person would consider that, in all the circumstances, the material is intended to directly or indirectly advance a political, religious or ideological cause; and (c) a reasonable person would consider that, in all the circumstances, the material is intended to assist, encourage or induce a person to: -- 11 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 12 (i) engage in, plan or prepare for an intimidatory act; or (ii) do a thing that relates to engaging in, planning or preparing for an intimidatory act; or (iii) join or associate with an organisation that is directly engaged in the doing of any intimidatory act, or that is preparing, planning, assisting in or fostering the doing of any intimidatory act. … (3) An intimidatory act is a violent action, or threat of violent action, where the action is done, or the threat is made, with the intention of: (a) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (b) intimidating the public or a section of the public. 26 An offence against s 474.45B is a 'terrorism offence' within the meaning of the Crimes Act 1914 (Cth). Section 19AG(2) of the Crimes Act 1914 (Cth) provides that the non-parole period for the sentence for such an offence must be at least three-quarters of the sentence. The Crimes Act 1914 (Cth) also provides, in s 19ALB, that the Attorney-General may only make a parole order if the Attorney-General is satisfied that exceptional circumstances exist to justify making such an order. 27 Otherwise, the provisions of the Crimes Act 1914 (Cth) in relation to the sentencing of federal offenders for offences under s 474.17(1) and s 474.45B of the Criminal Code are the same. That is, there are no other provisions of the Crimes Act 1914 (Cth) in relation to the sentencing of federal offenders that apply only to 'terrorism offences' as defined in that Act. The general sentencing principles prescribed by the Crimes Act 1914 (Cth) apply, although, as I will come to, the courts have developed a number of general principles in relation to sentencing for terrorism offences. 28 Before turning to the grounds of appeal, I commence with some general observations in relation to the sentencing regime prescribed for Commonwealth offences by the Crimes Act 1914 (Cth). -- 12 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 13 Sentencing for federal offences and terrorism offences generally 29 The general sentencing principles applicable to federal offences are prescribed by pt 1B, div 2 of the Crimes Act 1914 (Cth). Section 16A, in particular, identifies the matters to which a court sentencing offenders for federal offences must have regard. Section 16A(1) provides that '[i]n determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence'. 30 Section 16A(2) then sets out various matters that the court must take into account 'as are relevant and known to the court'. Those matters are many and varied and, as with sentencing considerations generally, the matters in s 16A(2) are capable of pointing in different directions. 31 It is instructive, in order to appreciate the range of the matters in s 16A(2) of the Crimes Act 1914 (Cth) to set out a number of them, that may be relevant to the circumstances of the present case. Section 16A(2), for example, provides: (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the offence; (b) other offences (if any) that are required or permitted to be taken into account; (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct; … (e) any injury, loss or damage resulting from the offence; … (f) the degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner; -- 13 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 14 … (g) if the person has pleaded guilty to the charge in respect of the offence: (i) that fact; and (ii) the timing of the plea; and (iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence; (h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (ja) the deterrent effect that any sentence or order under consideration may have on other persons; (k) the need to ensure that the person is adequately punished for the offence; (m) the character, antecedents, age, means and physical or mental condition of the person; (n) the prospect of rehabilitation of the person; … (p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants. 32 The list of matters in s 16A(2) has grown since its introduction, and has continued to grow since the offences committed by Mr Hoolash. In addition, as is apparent from the opening words of the subsection ('[i]n addition to any other matters'), the list is not exhaustive. Depending upon the circumstances of the particular case other sentencing considerations may also be relevant. One obvious matter that will be relevant in many cases, although not expressly referred to in s 16A(2), is the protection of the community. Another, while implicit in the 'physical or mental condition' of the offender, is the ongoing effects of profound childhood deprivation. This last consideration is also instructive because, as the High Court pointed out -- 14 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 15 in Bugmy v The Queen,8 it may point in different directions: that is, the same consideration may, at once, reduce the offender's moral culpability and, at the same time, increase the need for community protection. 33 All of which is simply to recognise the truism that the application of s 16A cannot be applied mechanically; less still can it be applied mathematically. The balancing of all of the relevant matters in s 16A is always a matter of instinctive synthesis, balancing often incommensurable factors to arrive at a sentence that is just in all of the circumstances.9 34 For these reasons, the matters in s 16A(2) should not be approached as if they were a checklist, each of which adds or subtracts periods of time from a subliminally determined starting point. The weight to be given to any particular matter will vary from case to case and, while general principles are important in maintaining consistency of sentencing, those principles are intended to operate in the service of arriving at the just sentence in all of the circumstances, and not vice versa. 35 Accordingly, just as the matters listed in s 16A of the Crimes Act 1914 (Cth) are not to be regarded as a checklist to be mechanically applied by the sentencing judge, nor should statements of general principle collected in previous cases in relation to particular kinds of offending be regarded as rigid categories to be applied, or not applied, based on some a priori classification of the particular offending. 36 I emphasise this last point because the submissions of both Mr Hoolash and the Crown in the present appeal, particularly in relation to ground 2, ran the risk of elevating statements of general principle in previous decisions into rigid formulae. Both parties, for example, took several statements of general principle collected by Johnson J in R v Alou (No 4),10 converted those statements of principle into numbered 'propositions' and then parsed their language as if they were statutory text, with a view to determining the extent to which the propositions 'applied' to offences against s 474.45B of the 8 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [44] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ). 9 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [39] (Gleeson CJ, Gummow, Hayne & Callinan JJ); Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428 [4] - [7] (Kiefel CJ, Bell & Keane JJ); BSN v The State of Western Australia [2025] WASCA 142 [1] - [2] (Quinlan CJ). 10 R v Alou (No 4) [2018] NSWSC 221 [165] - [170]. -- 15 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 16 Criminal Code. Adding to the complexity of the exercise, the parties also drew a distinction between 'terrorism offences' and 'offences that involve a terrorist act', in relation to which it was submitted that the 'Alou principles' needed to be 'augmented, in the sense of being adjusted or adapted'.11 37 This whole exercise, in my respectful view, introduces more technicality and formulism into the sentencing process than it can reasonably bear. In that regard, I should stress that I do not understand the judges who have formulated general principles in the previous cases to have intended that outcome. Statements of general principle are just that: principles that are intended to be applied having regard to the circumstances of the particular case. The fact that, in one case, the principles may be applied differently because of some particular feature of the offending or the offender, does not call for the revision of those principles or the introduction of new and more elaborate taxonomies. It is simply a reminder that sentencing is a difficult exercise in which the sentencing judge must do justice in the circumstances of the particular case. 38 There is, for example, as Bathurst CJ recognised on appeal in Alou v R,12 a clear body of authority that, in sentencing for terrorism offences, the significance of punishment, deterrence and protection of the community means that mitigating factors such as youth and the prospects of rehabilitation are given less weight. Terrorism poses a singular threat to civil society,13 and sentencing for terrorism offences must therefore reflect that singular threat, whether those offences involve the preparation for, or commission of terrorist acts, or whether they involve other forms of conduct that support or foster terrorism. An offence against s 474.45B of the Criminal Code is, as Parliament has expressly recognised, clearly a terrorism offence to which this general principle applies. 39 Recognising this important general principle, however, does not mean that the relative weight to be given to each of the relevant sentencing considerations will be identical in every case in which an offender falls to be sentenced for a terrorism offence. Not every offence properly described as a terrorism offence is the same, nor is every 11 Respondent's Submissions [37] (WAB 37). 12 Alou v R [2019] NSWCCA 231; (2019) 101 NSWLR 319 (Alou v R) [131] (Bathurst CJ; Price & N Adams JJ agreeing). 13 Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 272 CLR 68 [36] (Kiefel CJ, Bell, Keane & Steward JJ) (footnotes omitted). -- 16 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 17 offender who commits such an offence. It is, moreover, in the very nature of a general principle such as that recognised by Bathurst CJ in Alou v R, that the circumstances of a particular case might require that more weight be given to a particular sentencing consideration than in other cases. 40 The fact that rehabilitation, for example, will generally carry less weight than deterrence and protection of the community in relation to sentencing for terrorism offences does not mean that in a particular case, rehabilitation cannot ever assume particular significance. As Bathurst CJ also recognised in Alou v R, s 16A(2)(n) of the Crimes Act 1914 (Cth) obliges the court to take into account the prospects of rehabilitation and that task 'is to be carried out on the evidence before the court'.14 And it may be that in a particular case, for example, the evidence as to an offender's prospects of rehabilitation, and the available means to bring about that rehabilitation, is so strong that the weight to be given to rehabilitation is much increased. 41 Again, of course, each case depends upon its own facts and circumstances. The important point, for present purposes, is that the potential for rehabilitation to assume particular importance on the facts of a given case does not call into question the general principle, nor does it call for its revision in relation to particular types (or sub-types) of terrorism offence. 42 With these general observations, I turn to the grounds of appeal. Grounds of appeal 43 As noted above, Mr Hoolash appeals from the sentence of 2 years and 6 months imprisonment in relation to count 2 on three grounds. There is, however, considerable overlap in the grounds. 44 By ground 1, Mr Hoolash contends that the learned sentencing judge erred in assessing the objective seriousness of his offending with respect to count 2. In so contending, Mr Hoolash relies upon three particulars, namely that her Honour erred in: (a) finding that the sentencing considerations applicable to 'terrorism offences' generally (including where the offender has engaged in some act of terrorism), were equally applicable to offences against s 474.45B of the Criminal Code; 14 Alou v R [102] (Bathurst CJ; Price & N Adams JJ agreeing). -- 17 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 18 (b) finding that Mr Hoolash's conduct in distributing violent extremist material within a group of persons likely to hold similar views to his own, or be less likely to be offended by the material, was as serious, or more serious, than if the material had been distributed to persons likely to find the material highly offensive and distressing; and (c) placing undue weight on the violent and extreme nature of the material in assessing objective seriousness in circumstances where the violent and extreme nature of the material is itself an intrinsic element of the offence. 45 Ground 2 makes essentially the same contention as that in the first particular to ground 1. By ground 2, Mr Hoolash contends that the learned sentencing judge erred in determining that an offence against s 474.45B of the Criminal Code 'is an offence where rehabilitation of the offender can be given little weight'. The particulars in support of ground 2, in essence, contend that her Honour erred by applying sentencing principles identified in relation to 'terrorism offences' generally, to offences against s 474.45B of the Criminal Code. It was in this context that Mr Hoolash's submissions sought to parse the applicability of what he described as various 'Alou Propositions' (see [36] above). 46 Ground 3 contends that the sentence of 2 years and 6 months imprisonment in relation to count 2 was manifestly excessive, namely that it was so plainly unjust or unreasonable that the Court should conclude that a substantial wrong has occurred. 47 Grounds 2 and 3 are related in that they both contend, as particulars of each ground, that the learned sentencing judge failed to give 'appropriate weight' to Mr Hoolash's subjective features 'including his gross immaturity, age, lack of opportunities to undertake rehabilitation in custody, his prospects of rehabilitation and the need to impose a sentence that takes into account the protection of the community – which in this case mandated significant weight to be accorded to rehabilitation'.15 48 The weight to be given to any sentencing consideration is, of course, a matter for the sentencing court. For that reason, an allegation that a sentencing court failed to give 'appropriate weight' to a relevant 15 Ground 2(c), Ground 3(b). -- 18 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 19 sentencing consideration does not, of itself, allege appealable error.16 To give inadequate weight, or too much weight, to a relevant sentencing consideration only gives rise to an appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court.17 49 It is for this reason, no doubt, that ground 2 alleges an error of principle and ground 3 alleges manifest excess. 50 I commence with the alleged error of principle raised by ground 2 (and the first particular of ground 1). Because ground 1(a) and ground 2 raise the same question of principle, I address them together. Sentencing considerations relevant to s 474.45B of the Criminal Code 51 The focus of ground 2 (and the first particular of ground 1) is the learned sentencing judge's statement that:18 [T]he dominant sentencing considerations for terrorism offences are therefore punishment, protection of the community, denunciation of the conduct and both general and personal deterrence. Rehabilitation and personal circumstances of the offender are also relevant but should be given relatively little weight. 52 As a statement of principle in relation to terrorism offences, her Honour's remark was perfectly orthodox. It accords with the clear body of authority referred to by Bathurst CJ in Alou v R (see [38] above). Indeed, the learned sentencing judge's remarks essentially paraphrase the following statement of principle expressed by Price J in Lodhi v The Queen:19 Rehabilitation and personal circumstances should often be given very little weight in the case of an offender who is charged with a terrorism offence. A terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence and retribution. 53 It was this very passage from Lodhi v The Queen that the Crown submitted to the learned sentencing judge should be applied in the present case.20 That being the case, it is somewhat surprising that the Crown joined with Mr Hoolash on the appeal in suggesting that, 16 MMA v The Queen [2015] WASCA 177 [4] (MMA v The Queen) (Mazza JA; McLure P agreeing). 17 R v Lee [2013] WASCA 216 [51] (McLure P; Mazza JA & Hall J agreeing). 18 WAB 127. 19 Lodhi v The Queen [2007] NSWCCA 360; (2007) 179 A Crim R 470 [274] (Price J). 20 Crown's Submissions on Sentence [27] (WAB 170). -- 19 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 20 notwithstanding that it is a 'terrorism offence' so designated by Parliament, an offence against s 474.45B of the Criminal Code falls into a different category to which separate and distinct sentencing principles should be applied. 54 As I have already indicated (at [36] to [41] above) the parties' approach in this regard, with respect, confused the nature of a general principle and the application of that general principle to the circumstances of a particular case. 55 The Crown, for example, submitted that the general principles needed to be 'augmented', 'adapted or adjusted' because 'this offence addresses different criminality'.21 The fact that s 474.45B addresses 'different criminality' to other 'terrorism offences' in the Criminal Code is, with great respect, obvious: all offences address, to a greater or lesser degree, 'different criminality'. That is why general principles must be applied to the specific case. 56 This was precisely the point made by McCallum JA (as her Honour then was) in Elmir v The Queen,22 which the Crown relied upon in this context. In that case, unlike in the present case, the Crown had sought to expand the category of 'terrorism offences' rather than, as in this case, introduce new 'sub-categories'. In that context, McCallum JA said:23 They are different offences addressing different criminality. To give foreign incursion offences the label of being 'a species of terrorism' in order to justify the application of a particular set of principles to such offences invites error. The same may be said of the undiscerning formulation or application of general principles said to apply to a particular 'kind of case' or particular kinds of offence. The overriding sentencing principle is always the same. As explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51], the correct approach (termed 'instinctive synthesis') is 'the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case'. Principles developed judicially may be helpful in giving more concrete guidance in relation to particular kinds of offence but the ultimate task is to determine the factors that are relevant to the sentence to be imposed in the individual case. 21 Respondent's Submissions [38] (WAB 37). Mr Hoolash's submissions were to similar effect: Written Submissions of Appellant [42] (WAB 21). 22 Elmir v The Queen [2021] NSWCCA 19; (2021) 357 FLR 274 (Elmir v The Queen). 23 Elmir v The Queen [37] (McCallum JA, Garling & Wright JJ). -- 20 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 21 57 This caution against 'the undiscriminating application of principles said to apply in any particular "kind of case" or for particular kinds of offence' was endorsed by the New South Wales Court of Criminal Appeal in AH v R.24 It is the same caution, I hope, that I have sought to articulate at [36] to [41] above. 58 Once the role of general principles is properly understood, it is clear, in my view, that the learned sentencing judge's statement of principle in relation to 'terrorism offences', and the relevance of those general principles to the present case, was entirely correct. 59 The offence created by s 474.45B of the Criminal Code is clearly a 'terrorism offence'. It is so designated by the Commonwealth Parliament and it is clearly intended to address the serious threat of terrorism in contemporary Australia. As the learned sentencing judge's considered references to the Second Reading Speech in relation to the Bill that introduced the offence make clear, violent extremist material 'facilitates radicalisation' and may encourage and assist in the planning of violent terrorist acts. That its dissemination may prey on the young, the uninformed and the unsophisticated does not make it any less dangerous to the safety of the community (indeed in some respects it may heighten that danger). 60 In those circumstances, the learned sentencing judge did not err in identifying the general principles that have been identified in the context of terrorism offences as relevant in the present case. As a general principle, it is correct to say that the importance of the protection of the community (and associated matters such as deterrence) will indeed often outweigh rehabilitation and the personal circumstances of the offender in cases such as the present. 61 This does not mean that in a particular case the facts and circumstances might not justify that greater (and perhaps significantly greater) weight being afforded to the rehabilitation of the particular offender. Depending upon the evidence, that may well be the case (as the Explanatory Memorandum for the Bill that introduced the offence recognised).25 Indeed, it may be that, over time, experience will show that good prospects for rehabilitation (and the importance of those prospects for the protection of the community) will be able to be demonstrated more often in the case of offences against s 474.45B than 24 AH v R [2023] NSWCCA 230 [117] (Leeming JA, N Adams & Dhanji JJ). 25 Revised Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (Cth) [16], [305]. -- 21 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 22 in relation to other 'terrorism offences'. There is, however, no reason to make abstract assumptions to that effect, so as to arrive at some new sub-category of terrorism offence. 62 For these reasons, in my view, the learned sentencing judge did not err in identifying the general principles in the manner that her Honour did. Nor, more importantly, having identified those general principles, did her Honour apply the principles as if they were some rigid formulae or inflexible rule. On the contrary, it is clear from the learned sentencing judge's sentencing remarks as a whole that her Honour was attentive to all of the facts and circumstances relevant to this particular sentencing exercise. 63 In that respect, the learned sentencing judge clearly gave express weight to Mr Hoolash's age and immaturity, remarking that it 'moderated the sentence'. As to his prospects of rehabilitation, the evidence before her Honour was equivocal. The learned sentencing judge, for example, found that there was no evidence that Mr Hoolash had resiled from his extremist views and, while her Honour was confident that 'with the right treatment' there were reasonable prospects for his rehabilitation, he had not had any treatment.26 This was apparently because intervention would not become available until Mr Hoolash was sentenced. Nevertheless, it did mean that, in all of the circumstances, it was open to the learned sentencing judge to conclude that, consistent with the general principles her Honour identified, that this was a case in which rehabilitation and Mr Hoolash's personal circumstances carried relatively less weight. 64 In those circumstances, no error of principle is revealed in the manner in which the learned sentencing judge synthesised the various competing sentencing considerations. 65 While I would grant leave on ground 2, the ground has not been made out. 66 For the same reasons, the error of principle alleged in the first particular of ground 1 has not been made out. I now turn to the specific errors alleged in ground 1 as to the learned sentencing judge's assessment of the objective seriousness of the offence in count 2. 26 WAB 123 - 124. -- 22 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 23 Objective seriousness of the offence against s 474.45B of the Criminal Code 67 As noted above, in ground 1, Mr Hoolash contends that the learned sentencing judge made two specific further errors when assessing the objective seriousness of count 2. 68 I will address, first, the contention that the learned sentencing judge erred by 'placing undue weight on the violent and extreme nature of the material in assessing objective seriousness in circumstances where the violent and extreme nature of the material is itself an intrinsic element of the offence'.27 The contention was based upon her Honour's description of Mr Hoolash's conduct in transmitting the violent extremist material as 'vile and depraved' and that her Honour did not accept that the transmission of 'video footage of the mass murder of a number of men by the use of a knife and gunfire is offending at the lower end of the scale of seriousness'.28 69 On its face, this contention, in asserting that the learned sentence judge gave 'undue weight' to the violent and extreme nature of the material (that is, a weighting error), does not allege an appealable error. In any event, there is no substance to the contention. The violent extremist material transmitted by Mr Hoolash was indeed 'vile and depraved' and, as Mr Hoolash accepted in his submissions, the gravity and extent of the violence depicted in the violent extremist material was relevant to the assessment of the objective seriousness of the offence.29 70 In this context, it is notable that 'violent extremist material' is not limited to depictions of serious violence, but can also include 'descriptions' of such violence. 'Serious violence', in turn, can include any physical harm or serious damage to property.30 There is, accordingly, a broad range of material that, so long as the other requirements of s 474.45A(1)(b) and (c) are met, can amount to violent extremist material. In that context the actual depiction of violent and gruesome murders by ISIS terrorists, while not the only consideration relevant to an assessment of the seriousness of Mr Hoolash's offending, was certainly a consideration which significantly elevated its seriousness. 71 Nor, in my view, is there anything to suggest that the learned sentencing judge gave undue weight to the content of the material or, as 27 Grounds of Appeal (WAB 7). 28 WAB 122. 29 Written Submissions of Appellant [29(1)] (WAB 18). 30 Criminal Code s 100.1(2), s 110.1(2), s 474.45A(1)(a). -- 23 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 24 Mr Hoolash's submissions at least implied, that her Honour became 'overwhelmed by the graphic and disgraceful nature of the material'.31 On the contrary, while it was necessary for her Honour to convey the gravity of Mr Hoolash's offending, it is apparent from the sentencing remarks as a whole that the learned sentencing judge approached the sentencing task with appropriate judicial restraint and did not dwell on the many gruesome and sordid details of the material. 72 This leaves Mr Hoolash's contention that the learned sentencing judge erred in concluding that Mr Hoolash's conduct in distributing the violent extremist material within a group of persons likely to hold similar views to his own was 'if anything' more serious than if the material had been distributed to persons likely to find the material highly offensive and distressing. 73 There is no merit in this contention. In my view, the learned sentencing judge was entirely correct to reach the conclusion that she did. 74 It is in this respect, in my view, that the context of the transmission of the violent extremist material assumes particular importance. As I have observed above, apart from the Instagram post, the posts the subject of count 2 formed part of a continuous engagement with the Telegram group, a group of like-minded individuals who shared Mr Hoolash's extremist views. That audience, and the context in which Mr Hoolash posted the material, including his explicit approval and celebration of it, elevated the seriousness of the offence. 75 It is, of course, the case that, save for the fault elements in s 474.45B(2), proof of the offence of transmitting violent extremist material does not require proof of any motivation or intention on the part of the offender. As the Explanatory Memorandum for the Bill that introduced the offence makes clear, the offence of transmitting or possessing violent extremist material 'focus on the nature of the material, rather than the intentions of the person dealing with it'.32 So long as a person intentionally transmits such material, reckless as to whether the material itself is 'violent extremist material', that person will have committed an offence, regardless of their motivation or whether they intend to advance the 'political, religious or ideological cause' that the material may be intended to advance. Indeed, such a 31 Written Submissions of Appellant [32] (WAB 19). 32 Revised Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (Cth) [14]. -- 24 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 25 person will have committed the offence even if they abhor the cause sought to be advanced by the material. 76 While the motivation or context for the transmission of violent extremist material is not an element of an offence against s 474.45A, however, those matters may well be relevant to an assessment of the seriousness of a particular offence for which an offender is convicted. There is, in my view, an obvious qualitative difference between a person who transmits violent extremist material to others entirely for its 'shock value', with no interest in the material's ideological content, and a person who shares that material to others who share, or are likely to share, the ideological message of the material and who explicitly glorify and endorse that message. Both persons, of course, commit an offence; but, for the purposes of sentencing, the seriousness of the offence is greater in the latter than in the former. 77 Mr Hoolash clearly fell into the latter category. As he accepted in submissions before this Court,33 Mr Hoolash knew (rather than was merely reckless) that the material that he posted was violent extremist material, including that 'a reasonable person would consider that, in all the circumstances, the material is intended to directly or indirectly advance a political, religious or ideological cause'. And he distributed that material to persons likely to share his extremist views, explicitly endorsing the cause intended to be advanced by the material. 78 That was a matter that, in my view, significantly elevated Mr Hoolash's moral culpability and, accordingly, the objective seriousness of the offence. That was what the learned sentencing judge recognised when her Honour aptly described the offences as 'precursor offences', occurring in an environment that could 'contribute to a groundswell of hatred which eventually results in the commission of actual violence or terrorism towards certain groups'.34 79 To be clear, to recognise this is not, as Mr Hoolash's submissions were careful to caution against, to engage in what he described as a 'De Simoni error',35 namely punishing Mr Hoolash for a more serious offence than the offence of which he has been convicted, such as inciting or advocating terrorist violence.36 There was no suggestion in the learned sentencing judge's remarks that Mr Hoolash was inciting, or 33 Written Submissions of Appellant [32] (WAB 19). 34 WAB 19. 35 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. See Written Submissions of Appellant [26] (WAB 17). 36 Skelly v The State of Western Australia [2020] WASCA 3 [81] - [82] (Buss P, Mazza JA & Beech JA). -- 25 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 26 intending to incite, a terrorist act; hence her Honour's specific reference to it being a 'precursor offence'. Nevertheless, what Mr Hoolash was clearly doing, by posting the violent extremist material, in the form and in the context that he did, was deliberately contributing to the foment of hate and division, which is the soil in which terrorism is grown. That was clearly relevant to the objective seriousness of his offending, and the learned sentencing judge was correct to so recognise and correct to conclude that the offending was, objectively, 'very serious'. 80 While I would grant leave to appeal on ground 1, I would not uphold the ground. Manifest excess 81 Ground 3, which contends that the sentence of 2 years and 6 months imprisonment in relation to count 2 was manifestly excessive, asserts implied error. The relevant principles in that regard are well settled. They include the following matters, which are taken from the summary in Kabambi v The State of Western Australia.37 82 Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently. 83 In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances. The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. 84 The broad consistency referred to in these principles has an added dimension in a case such as this, where the offender has been sentenced for federal offences. As the High Court has confirmed on a number of 37 Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA). -- 26 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 27 occasions, consistency in federal sentencing is to be achieved through the work of the intermediate courts of appeal in Australia.38 For that reason this Court should have regard to what has been done in comparable cases throughout the Commonwealth, as it can and should provide guidance as to the identification and application of relevant sentencing principles and may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence.39 85 In the present case, while it is possible (as I have earlier done) to identify some general principles that have been established in relation to terrorism offences generally in other intermediate courts of appeal in Australia, there have been no previous appeal decisions in relation to sentences imposed for offences against s 474.45B of the Criminal Code. There is, accordingly, no existing range of sentences customarily imposed against which to compare the sentence imposed in the present case. While the parties referred to another first instance sentencing decision from the District Court, The King v Fletcher,40 by way of comparison, in my view it provides little assistance in establishing a customary sentencing standard. It has often been said in this Court, in the context of State offences, that broad consistency is determined through the work of this Court, and its predecessor, rather than by reference to sentences passed at first instance.41 In any event, The King v Fletcher is only one decision, which involved very different circumstances. One swallow does not a summer make. 86 It is therefore necessary to return to first principles. 87 The objective seriousness of Mr Hoolash's offending was, as the learned sentencing judge concluded, while not at the highest end of the scale, very serious and, as I have concluded, her Honour was entitled to find on the evidence before her that Mr Hoolash's personal circumstances should be given relatively less weight. In those circumstances a substantial term of imprisonment was warranted. 88 Nevertheless, in my view, particularly when regard is had to the maximum penalty of 5 years imprisonment prescribed by the Criminal 38 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56] - [57] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ). 39 R v Pham [2015] HCA 39; (2015) 256 CLR 550 [18], [26] (French CJ, Keane & Nettle JJ). 40 Transcript, The State of Western Australia v Nathan Fletcher; The King v Nathan Fletcher, District Court of Western Australia, 28 March 2025 (Christian DCJ). 41 See Impicciatore v The State of Western Australia [2020] WASCA 33 [279] (Buss P & Mazza JA); The State of Western Australia v Zhuang [2021] WASCA 56 [111] (Buss P, Mazza & Vaughan JJA). -- 27 of 64 -- [2026] WASCA 61 QUINLAN CJ Page 28 Code for the offence, Mr Hoolash's young age and his plea of guilty at the earliest opportunity, the sentence imposed by the learned sentencing judge for count 2 was severe. It is certainly higher than I would have imposed for count 2, considered in isolation. Ordinarily, in my view, notwithstanding the relative weight afforded to personal circumstances, one would expect that a young man of 18 years, with no prior convictions, would be sentenced to less than half of the maximum penalty following an early plea of guilty. 89 The fact that I might have exercised the sentencing discretion differently, however, does not mean that the learned sentencing judge was wrong to impose the sentence that her Honour did. And a number of features of the present case lead me to conclude that her Honour was not wrong. 90 First, it is relevant that the sentence for count 2 formed part of an overall total effective sentence for all of Mr Hoolash's offending of 3 years imprisonment. In that regard, this Court's assessment of the severity of an individual sentence, and therefore whether the individual sentence is manifestly excessive, is to be undertaken in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. Those matters may affect the Court's assessment of whether the individual sentence is unreasonable or plainly unjust.42 91 This is particularly relevant in the present case because, as I have already identified, there was, despite their separate and distinct criminality, considerable overlap in the circumstances surrounding the offending in count 1 and count 2. While it was, and is, important for the court to avoid double punishment in taking into account surrounding circumstances that lent to the two offences their particular seriousness, there was nevertheless a discretionary judgment to be made as to the manner in which those circumstances were reflected in the individual sentences. 92 For example, as I have said, both offences, in their different ways, contributed to what the learned sentencing judge described as 'a groundswell of hatred which eventually results in the commission of actual violence or terrorism towards certain groups'.43 That real potential harm was relevant to the sentence to be imposed for each 42 The State of Western Australia v BKJ [2018] WASCA 136 [119] (Buss P, Mazza & Mitchell JJA); MHE v The State of Western Australia [2019] WASCA 133 [59] (Mitchell & Beech JJA; Quinlan CJ agreeing). 43 Sentencing Remarks 69 (WAB 123). -- 28 of 64 -- [2026] WASCA 61 QUINLAN CJ THOMSON P Page 29 offence. How that potential harm should be reflected in one sentence, as opposed to the other, however, is a matter in relation to which reasonable minds can differ, and perhaps differ significantly. 93 If I were sentencing Mr Hoolash, for example, it is likely that I would have attached greater significance to the corrosive and harmful impact of Mr Hoolash's own extremist and offensive rhetoric and his glorification of terrorists in count 1, than I would to the transmission of the violent extremist material the subject of count 2. In that regard, it is likely that the sentence I would have imposed in relation to count 1 would have been greater than the sentence of 14 months identified by the learned sentencing judge (before the reduction for totality) on count 1. In the final result, however, I would likely have arrived at substantially the same total effective sentence for all of Mr Hoolash's offending, but with a comparatively heavier sentence with respect to count 1. The learned sentencing judge evidently took a different view as to the relative contribution of the two offences to Mr Hoolash's overall criminality. That was a judgment that was well open to her Honour and reveals no error. 94 Accordingly, in all of the circumstances, I am not satisfied that the sentence of 2 years and 6 months imprisonment in relation to count 2 was plainly unjust or unreasonable. 95 While I would grant leave on ground 3, the ground has not been made out. Conclusion 96 For the foregoing reasons I would make the following orders: 1. Leave to appeal on the grounds of appeal is granted. 2. The appeal is dismissed THOMSON P: 97 The appellant pleaded guilty to two offences contained in chapter 10, part 10.6 of the Criminal Code (Cth). This part contains offences concerning the use of telecommunication services. Count 1 was an offence against s 474.17(1), which is an offence of using a carriage service in a way that reasonable persons would regard as being menacing, harassing or offensive. The maximum penalty for this offence is imprisonment for 5 years. The appellant received a sentence of 1 year and 2 months' immediate imprisonment. Count 2 was an -- 29 of 64 -- [2026] WASCA 61 THOMSON P Page 30 offence against s 474.45B(1)(a)(iii), which is an offence of using a carriage service to disseminate 'violent extremist material'. The maximum penalty for this offence is also imprisonment for 5 years. The appellant received a sentence of imprisonment for 2 years and 6 months. Applying the principles of totality, the sentencing judge imposed a total effective sentence of 3 years' immediate imprisonment, by reducing the sentence for count 1 to 6 months and making it cumulative upon the sentence for count 2. 98 The offence contained in s 474.45B, relating to 'violent extremist material', was introduced into the Criminal Code (Cth) by the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 (Cth). The appellant has appealed solely against his sentence for this offence in respect of count 2. He has not appealed in respect of his sentence for count 1. This is the first occasion on which sentencing for the offence contained in s 474.45B has been considered by an intermediate appellate court in Australia. Offending conduct 99 The appellant was born on 13 December 2005 and was 18 years old at the time of the offending conduct in June 2024. 100 Telegram is a cloud-based messaging application with the ability to utilise end-to-end encryption. It can be used to send messages and share video, audio and image files between private groups of up to 200,000 users. Count 1 101 Between 4 June 2024 and 12 June 2024, the appellant made more than 90 posts of concern on a Telegram group named 'Jamaat al Munasireen'. This group was open to the public and had 105 members during the period of offending. A number of themes emerged in the posts which the appellant made. These included the need to kill all Shia Muslims, all Christians in Syria and all Jewish people, and the appellant's personal intention to participate in such killings. The posts made by the appellant also included explicit references to the method of killing these people, for example by beheading or shooting them. Another distinguishing theme within the posts was the appellant's intention to engage in sexual acts with young women and girls, including underage girls. Many of the posts explicitly described intentional criminal activity, including acts of violent rape or sexual assault of young girls. -- 30 of 64 -- [2026] WASCA 61 THOMSON P Page 31 102 Between 5 June 2024 and 12 June 2024, the appellant also posted approximately 337 audio or voice recordings on the same Telegram group chat. The same type of themes permeated these recordings. Count 2 103 On 4 June 2024, the appellant posted two videos to the same Telegram group chat. The first video was 44 seconds. It showed the execution of a prisoner by means of having his head crushed in while lying on the ground and having a rock thrown onto him. At the conclusion of the video, there was an overlaid image of a child dying, an ISIS flag, a provincial marking and subtitles containing a political statement on behalf of the Islamic State or ISIS, a Sunni Islamic extremist group which was proscribed as a terrorist organisation by the Australian Government. The appellant posted a comment on the video, giving it his approval in the most profane terms. 104 The second video was posted immediately after the first one. It was two minutes and 15 seconds long. It showed the execution of four men of middle eastern descent, by means of having their throats cut by a man clad in black using a very large knife. Again, this video concluded with images and messages of a political nature on behalf of ISIS. 105 On 8 June 2024, the appellant both reposted and forwarded this video along with the comment 'I wanna do this'. The appellant reposted this video again on 9 June 2024 to the same group chat. 106 Again on 8 June 2024, the appellant posted a third video which was one minute and 56 seconds long. This was produced on behalf of ISIS, and showed the beheadings of 'non-believers'. The appellant then posted three obscene comments about violently raping Shia Muslim women and killing Shia Muslim men. 107 On 12 June 2024, the appellant posted a fourth video to his account with Instagram, which is a cloud-based photo and video sharing social networking service. This video was 60 seconds long. It showed the murder of 15 males dressed in civilian clothes, who were made to lie on rocky ground. Two men with AK-47 rifles, fired these into the prone males appearing to kill them. The video ended with a voice speaking and a subtitle overlaid containing statement made on behalf of ISIS. The corner of the video contained an ISIS flag. -- 31 of 64 -- [2026] WASCA 61 THOMSON P Page 32 108 I have not personally viewed the videos, but I have taken the description of their content from the Statement of Material Facts served pursuant to s 35 of the Criminal Procedure Act 2004 (WA). This was in accordance with the approach taken by the parties.44 Appellant's personal circumstances 109 The appellant was born in Mauritius, but migrated to Australia with his parents when he was 2 years old. When he was approximately 8 years old, his brother was born into the family. He appears to have caring parents, who have generally provided a stable home environment. His father operates a painting business, while his mother is employed as a customer service officer with a large company. 110 The appellant attended school until year 11, when he was expelled for fighting. He drank alcohol and smoked cannabis during the last year when he was at school, but ceased his use of substances when he was 16 years old. In 2023 he attended TAFE and completed a Certificate III in Engineering (Technical). 111 The appellant was first exposed to violent images when he was 6 or 7 years old. He said that he viewed online content on an iPad that his father had purchased for him. He said that he saw violent videos of gang warfare on Instagram when he was 11 years old. 112 In his early and mid-teenage years, the appellant would hang around public places, such as train stations, in a group when he was not at school. He would try and attract girls. He thought they were attracted to his fighting. 113 When the appellant was 16 years old, he decided that he wanted to take his religion more seriously. He adheres to the Sunni Muslim faith. 114 The appellant was assessed by a clinical psychologist, Helen Fowler, who considered that he was 'grossly immature'.45 Ms Fowler also said that he was forming his identity on a stereotyped view of what a male should be.46 Her psychologist report acknowledged that the appellant presented with a significant lack of insight into the seriousness of his thoughts, feelings, and behaviours, which underpinned his violent attitudes and beliefs.47 Ms Fowler 44 See also R v Hutchinson [2018] NSWCCA 152 [47] - [50] (R A Hulme J; Meagher JA & Button J agreeing). 45 Report of Clinical Psychologist Helen Fowler dated 11 March 2025 [57] (Psychological report). 46 Psychological report [57]. 47 Psychological report [56]. -- 32 of 64 -- [2026] WASCA 61 THOMSON P Page 33 considered that he lacked insight into his immaturity, and he had a persistent desire to be perceived by others as strong and powerful through the use of violence.48 115 Ms Fowler considered that it was reasonable to suggest that, at the time of his offending and given his emotional immaturity, the appellant failed to consider the significance and seriousness of the content he was creating and engaging with online.49 116 This would explain why, during interviews with the police, the appellant said that the posts he had made sounded like satire to him, and why he laughed when some of the messages posted on 'Jamaat al Munasireen' were read to him.50 Sentencing Judge's remarks 117 After the hearing of parties' oral submissions on 18 March 2025, the sentencing judge delivered remarks and imposed terms of imprisonment on 20 March 2025. The sentencing judge commenced by outlining the offending conduct, in similar terms to the description set out above.51 118 In relation to count 1, the sentencing judge said that the appellant had:52 used the most hateful, racist, misogynistic and violent language directed towards various groups of people who evidently you regard as your enemies. … Your language conveyed ideas of killing and cruelty, which defies the imagination of civilised minds. The fact that you chose to express such beliefs in a semi-public forum carried a risk of [inflaming] others to adopt similarly vile thoughts and potentially inspire them to act accordingly. 119 At the hearing of the appeal, the appellant's senior counsel accepted this characterisation of the appellant's offending.53 48 See for example Psychological report [56], [69], [72]. 49 Psychological report [74]. 50 WAB 140 (statement of material facts [26]). 51 WAB 118 - 121. Transcript, The King v Muhammad Ayman Al-Hassan Hoolash, District Court of Western Australia, 18 March 2025 & 20 March 2025, 64 - 67 (ts). 52 WAB 121 - 122; ts 67 - 68. 53 Appeal ts 29. -- 33 of 64 -- [2026] WASCA 61 THOMSON P Page 34 120 In relation to count 2, the sentencing judge said:54 [Y]our conduct involved you transmitting material which deserves the description of vile and depraved. I do not accept that the transmission of, for example, video footage of the mass murder of a number of men by the use of a knife and gunfire is offending at the lower end of the scale of seriousness as your counsel submitted. Whilst it is certainly true that your offending could have been worse, it was certainly not at the lower end of the scale. The Crown has generously conceded that your offending is not at the highest end of the scale of seriousness, and I am prepared to accept that concession. Nevertheless I regard this offending as a very serious example of someone distributing violent extremist material. 121 Again, at the appeal hearing, the appellant's counsel accepted the characterisation of the appellant's conduct given in this passage by the sentencing judge in respect of count 2.55 122 The sentencing judge then referred to aggravating factors. Her Honour considered that the appellant's offending was aggravated by the fact that it was not 'one-off offending'. Her Honour said that it was not a momentary lapse of judgment but represented a sustained course of conduct over a period of eight days. The sentencing judge also considered that the offending was aggravated by the fact that the group chat on Telegram was open to new members and the appellant's Instagram profile was open to the public.56 123 The sentencing judge noted that the communications which were the subject of count 1 were circulated within a closed group of like-minded people, rather than more broadly. However, the sentencing judge considered this potentially made the offending conduct worse, because the group chat users were likely to have sympathised with the hateful things that the appellant was saying. 124 The sentencing judge characterised the offending conduct as involving 'precursor offences'. Her Honour said that these were offences which could occur in an environment contributing to a groundswell of hatred, eventually resulting in the commission of actual violence or terrorism towards certain groups.57 54 WAB 122; ts 68. 55 Appeal ts 29. 56 WAB 122; ts 68. 57 WAB 122 - 123; ts 68 - 69. -- 34 of 64 -- [2026] WASCA 61 THOMSON P Page 35 125 The sentencing judge then considered mitigating factors. Her Honour took into account that the offending was not particularly sophisticated, and that the appellant did not try to hide his identity. However, her Honour noted that the appellant had not truly expressed contrition or insight into his offending, notwithstanding that he had expressed shame about some of the things that he had said to the author of the pre-sentence report.58 126 The sentencing judge considered there to be no evidence to suggest that the appellant had resiled from his extremist views, but noted that he had been unable as yet to access treatment. Her Honour was confident that, with the right treatment, there were reasonable prospects for the appellant's rehabilitation and reintegration back into the community.59 127 However, the sentencing judge also identified that, presently, there was not 'a scintilla of evidence' which suggested that the appellant was disturbed by the material that he had distributed or by anything that he had said. Her Honour considered that some of the appellant's previous statements rather suggested that he enjoyed the idea of inflicting pain or suffering on others who he perceived as his enemies.60 128 The sentencing judge was prepared to apply a discount of 25% to take into account the plea of guilty by the appellant at the earliest opportunity.61 129 The sentencing judge also took into account the appellant's youth:62 I take into account the fact that you have no previous convictions and that you were only a young person, having been born on 13 December in 2006. You were only 18 years of age at the time and you are now 19. So you are entitled to the benefit of youth. 130 The sentencing judge referred to the appellant's psychological report, which identified that the area of the brain which controls social decision-making does not fully develop until a person is in their mid 20s. Her Honour referred to the fact that Ms Fowler considered the appellant to be 'grossly immature'.63 In that context, the sentencing 58 WAB 123; ts 69. 59 WAB 123 - 124; ts 69 - 70. 60 WAB 123; ts 69. 61 WAB 123; ts 69. 62 WAB 123; ts 69. 63 WAB 124; ts 70. -- 35 of 64 -- [2026] WASCA 61 THOMSON P Page 36 judge repeated that the appellant would receive a discount due to his youth. Her Honour said:64 In my view in view of your age and your immaturity, it is appropriate to moderate the sentence that I would otherwise have imposed to take that into account. Had you been older and more mature, the sentence that I'm imposing today would be higher. 131 Having reached that conclusion, the sentencing judge said that the report of Ms Fowler revealed nothing which would provide the appellant with any significant mitigation, other than his youth and his immaturity.65 The sentencing judge considered that the report supported the inference that the appellant had an elevated risk of reoffending, and the appellant had the risk of becoming even more radicalised. The sentencing judge referred again to the appellant's lack of insight into his own immaturity.66 132 The sentencing judge then referred to sentencing considerations based upon the new legislative provision contained in s 474.45B. Her Honour considered that this offence was enacted to fill a gap in the previous law to create an offence for using a carriage service for possession and dissemination of violent extremist material.67 The sentencing judge then referred to the Second Reading Speech for the introduction of this provision, and said:68 As the Second Reading Speech in the Commonwealth [P]arliament recognised, violent extremist material is harmful, because it facilitates radicalisation of terrorists. It encourages the planning of violent acts. These acts can then threaten public safety and Australia's core values and principles, including human rights, the rule of law, democracy, equal opportunity and freedom. While Australians are free to hold and communicate a variety of beliefs, the use or advocacy of violence to promote these beliefs is unacceptable. Violent extremist material adversely affects social cohesion, as it can vilify and portray or encourage violence against certain groups in society. Australians all have the right to live free from discrimination, hatred and violence. 133 This review of the sentencing remarks shows that the sentencing judge carefully structured her observations by referring to the nature of the offending conduct, potential aggravating factors, potential mitigating factors and the legislative purpose of s 474.45B. 64 WAB 124; ts 70. 65 WAB 124; ts 70. 66 WAB 125 - 126; ts 71 - 72. 67 WAB 126; ts 72. 68 WAB 126; ts 72. -- 36 of 64 -- [2026] WASCA 61 THOMSON P Page 37 134 Following the general observations about the legislative purpose of s 474.45B, the sentencing judge then added the following paragraph, which has taken on particular significance for the purposes of this appeal. The sentencing judge said:69 So the dominant sentencing considerations for terrorism offences are therefore punishment, protection of the community[,] denunciation of the conduct and both general and personal deterrence. Rehabilitation and personal circumstances of the offender are also relevant but should be given relatively little weight. In my view, this case, consistent with those sentencing principles, calls for sentences of condign punishment. (emphasis added) 135 This appeal raises a question as to whether the emphasised sentence in the last quoted paragraph is a general statement of principle, or whether it is intended to apply in the circumstances of this particular case. I will return to this when discussing the appeal grounds. 136 Following her Honour's remarks, the appellant was sentenced to a term of imprisonment of 2 years and 6 months in respect of count 2, and a term of 1 year and 2 months in respect of count 1. These sentences each took into account a 25% discount for the appellant's fast-tracked plea of guilty, and a further moderation on account of the appellant's youth and other matters mentioned by the sentencing judge. The sentencing judge then considered that the sentences should be served cumulatively, as they involved different conduct. However, her Honour also considered that there should be some reduction of the overall sentence on account of the totality principle. For that reason, the sentencing judge imposed a total effective sentence of 3 years, by reducing the sentence on count 1 to 6 months, to be served cumulatively upon the sentence of 2 years and 6 months for count 2.70 Legislative provisions 137 Count 1 concerned a breach of s 474.17(1). This offence is found in subdivision C of division 474, contained in pt 10.6 of ch 10 of the Criminal Code (Cth). Subdivision C contains general offences relating to the use of telecommunications. Section 474.17(1) is in the following terms: Using a carriage service to menace, harass or cause offence (1) A person commits an offence if: 69 WAB 127; ts 73. 70 WAB 127; ts 73. -- 37 of 64 -- [2026] WASCA 61 THOMSON P Page 38 (a) the person uses a carriage service; and (b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being in all the circumstances, menacing, harassing or offensive. Penalty: Imprisonment for 5 years. 138 Count 2 is an offence against s 474.45B(1)(a)(iii). That provision is located in part 10.6 subdivision HA division 474 of the Criminal Code (Cth). As mentioned, that whole subdivision was inserted by the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act, with effect from 8 January 2024. 139 Section 474.45B provides: Using a carriage service for violent extremist material (a) A person commits an offence if: (a) the person: (i) accesses material; or (ii) causes material, or an electronic link that can be used to access material, to be transmitted to the person; or (iii) transmits, makes available, publishes, distributes, advertises or promotes material or an electronic link that can be used to access material; or (iv) solicits material or an electronic link that can be used to access material; and (b) the person does so using a carriage service; and (c) the material is violent extremist material. Note: A person might commit an aggravated offence if an individual to whom such material is provided, or from whom such material is solicited, is less than 18 years old (see section 474.45BA). Penalty: Imprisonment for 5 years. (2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1): -- 38 of 64 -- [2026] WASCA 61 THOMSON P Page 39 (a) intention is the fault element for the conduct referred to in paragraph (1)(a); (b) recklessness is the fault element for the circumstances referred to in paragraph (1)(c), (3) Absolute liability applies to paragraph (1)(b). 140 The term 'violent extremist material' is defined in s 474.45A. Relevantly, s 474.45A(1) provides: (1) Material is violent extremist material if: (a) the material: (i) describes or depicts serious violence; or (ii) provides instruction on engaging in serious violence; or (iii) supports or facilitates serious violence; and (b) a reasonable person would consider that, in all the circumstances, the material is intended to directly or indirectly advance a political, religious or ideological cause; and (c) a reasonable person would consider that, in all the circumstances, the material is intended to assist, encourage or induce a person to: (i) engage in, plan or prepare for an intimidatory act; or (ii) do a thing that relates to engaging in, planning or preparing for an intimidatory act; or (iii) join or associate with an organisation that is directly engaged in the doing of any intimidatory act, or that is preparing, planning, assisting in or fostering the doing of any intimidatory act. (original emphasis) 141 The term 'serious violence' used in s 474.45A(1)(a) is defined as follows in s 474.45A(2): (2) For the purposes of paragraph (1)(a), serious violence is action that falls within subsection 100.1(2) or 110.1(2). -- 39 of 64 -- [2026] WASCA 61 THOMSON P Page 40 142 Both s 100.1(2) and s 110.1(2) create offences for acts that cause serious harm that is physical harm to a person; causes serious damage to property; causes a person's death; endangers a person's life, other than the life of the person taking the action; creates a serious risk to the health or safety of the public or a section of the public; or seriously interferes with, seriously disrupts, or destroys an electronic system (including an information system, a telecommunications system, a financial system, a system used for the delivery of essential government services, a system used for or by any central public utility or a system used for by a transport system). 143 The concept of an 'intimidatory act' is elaborated in s 474.45A(3) and (4): (3) An intimidatory act is a violent action, or threat of violent action, where the action is done, or the threat is made, with the intention of: (a) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (b) intimidating the public or a section of the public. (4) To avoid doubt: (a) material may be intended to do a thing referred to in paragraph (1)(b) or (c) even if the material is also intended, or mainly intended, to do one or more other things; and (b) an action may be done, or a threat may be made, with an intention referred to in subsection (3) even if that intention is not the only intention, or the main intention, with which the action is done or the threat is made. 144 An offence against s 474.45B, or indeed any offence contained in subdivision HA, is both a 'terrorism offence' and a 'serious terrorism offence' for the purposes of the Crimes Act 1914 (Cth).71 The classification as a 'terrorism offence' means that a minimum non-parole period of at least 75% of the sentence for this offence must be fixed,72 and that parole can only be granted by the Commonwealth 71 See Crimes Act s 3(a) and (ba), definition of 'serious terrorism' and 'terrorism offence'. 72 Crimes Act s 19AG. -- 40 of 64 -- [2026] WASCA 61 THOMSON P Page 41 Attorney-General if the Attorney-General is satisfied that exceptional circumstances exist to justify making a parole order.73 Subdivision HA - Revised Explanatory Memorandum 145 The Revised Explanatory Memorandum for the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (Cth) describes the legislative purpose of subdivision HA. Reference may be made to this external material, due to s 15AB(2)(e) of the Acts Interpretation Act 1901 (Cth), for the purposes mentioned in s 15AB(1). Relevantly, that is to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or to determine the meaning of the provision when the provision is ambiguous or obscure. 146 In the section described as 'General Outline', the Revised Explanatory Memorandum for the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill referred to the need for subdivision HA. It provided:74 14. Extremists are using the internet to recruit, spread propaganda and incite violence, particularly by targeting young people. Law enforcement, however, is limited in its ability to prosecute people for dealing with violent extremist material. While it is a crime to possess material that is connected with a terrorist act (for example, sections 101.4 to 101.6 of the Criminal Code) it is not currently a crime to deal with violent extremist material where, for example, planning or preparation for a terrorist act has not yet begun. This Bill would fill that gap by creating new offences for using a carriage service for violent extremist material (new section 474.45B), and possessing or controlling such material that has been accessed or obtained using a carriage service (new section 474.45C). These offences focus on the nature of the material, rather than the intentions of the person dealing with it. 15. Examples of the types of violent extremist material intended to be captured by the offence include instructional terrorist material and terrorist organisations' recruitment materials, which are aimed at disseminating extremist views and promoting violence. 73 Crimes Act s 19ALB. 74 Revised Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 (Cth) [14] - [16] (Revised Explanatory Memorandum). -- 41 of 64 -- [2026] WASCA 61 THOMSON P Page 42 16. These offences would facilitate law enforcement intervention at an earlier stage in individuals' progress to violent radicalisation, and provide greater opportunities for rehabilitation and disruption of violent extremist networks. They would also complement the existing framework for regulating online service providers, including the offences for hosting abhorrent violent material, and the eSafety Commissioner's powers to require providers remove or cease to host harmful content. (emphasis added) 147 In describing the effect of the new Subdivision HA, the Revised Explanatory Memorandum provided as follows:75 276. The offences in new Subdivision HA would address a gap in the offence regime in the Criminal Code. Existing offences criminalise the possession of things connected with terrorist acts (section 101.4), and collecting or making documents likely to facilitate terrorist acts (section 101.5). These provisions attach criminality to the circumstances in which material is possessed, however there is currently no Commonwealth offence that attaches criminality to the nature of material possessed or dealt with. These existing offences also require a connection to a terrorist act, which means law enforcement may be unable to intervene at an earlier stage. 277. The current legislative regime dealing with abhorrent violent material in the Criminal Code (Subdivision H) targets persons or companies who provide content services or hosting services (as opposed to any person who uses such a service), who fail to expeditiously remove, or cease to host, that material. The new offences in Subdivision HA would target individuals who deal with violent extremist material. 278. The new offences in Subdivision HA would complement existing offences by facilitating law enforcement intervention at an earlier stage in an individual's progression to violent radicalisation. The offences would also provide greater opportunity for the disruption of violent extremist networks. 279. By attaching criminality to the nature of material possessed, the offences would reflect the harm that is inherent in violent extremist material. Violent extremist material is harmful because it facilitates radicalisation. Violent extremist material may encourage and assist in planning violent acts. These acts can threaten public safety, and Australia's core values and principles, including human rights, the rule of law, democracy, equal opportunity and freedom. While Australians are free to 75 Revised Explanatory Memorandum [276] - [279]. -- 42 of 64 -- [2026] WASCA 61 THOMSON P Page 43 hold and communicate a variety of beliefs, the use or advocacy of violence to promote these beliefs is unacceptable. Violent extremist material adversely affects social cohesion as it can vilify and portray or encourage violence against certain groups in society. Australians have the right to live free from discrimination, hatred and violence. (emphasis added) 148 The intended width of s 474.45B was also alluded to in the following further paragraph from the Revised Explanatory Memorandum:76 306. The terms in new paragraph 474.45B(1)(a) are intended to cover a broad range of activities that a person could undertake in relation to violent extremist material which amount to dealing with the material or a link to the material via a carriage service. This would include actions a person takes with violent extremist material or an electronic link in relation to themselves, and actions a person takes that enable others to engage with violent extremist material or an electronic link to that material. This would reflect the harmful impact that this material has on all who come into contact with it. 'Makes available' in new subparagraph 474.45B(1)(a)(iii) is defined in the Criminal Code Dictionary as including, but not limited to, describing how to obtain access, or describing methods that are likely to facilitate access, to material (for example: by setting out the name of a website, a password, or the name of a newsgroup). Other terms in paragraph 474.45B(1)(a) would take their ordinary meaning. 149 The Revised Explanatory Memorandum also explained the reason for prescribing a maximum penalty of 5 years of imprisonment:77 305. The offence would carry a maximum penalty of 5 years imprisonment. This maximum penalty reflects the principle in the Guide that an offence should have a 'maximum penalty that is adequate to deter and punish a worst-case offence'. It is also appropriate noting the deterrent and early intervention objectives of the offence, and would reflect the potential range of offending that may occur. The 5-year maximum penalty is lower than existing offences that require a connection to a terrorist act and therefore attract higher penalties such as possessing things connected with terrorist acts (section 101.4 of the Criminal Code), and collecting or making documents likely to facilitate terrorist acts (section 101.5 of the Criminal Code). (emphasis added) 76 Revised Explanatory Memorandum [306]. 77 Revised Explanatory Memorandum [305]. -- 43 of 64 -- [2026] WASCA 61 THOMSON P Page 44 Nature of offence against s 474.45B 150 The focus of the offence contained in s 474.45B is 'violent extremist material' or VEM. As the description suggests, such material must have two characteristics: it must be violent, and it must be extremist. See s 474.45A(1). 151 To be violent, it must depict or describe 'serious violence', or instruct on engaging in 'serious violence', or support or facilitate 'serious violence': s 474.45A(1)(a). As previously explained, the term 'serious violence' is defined in s 474.45A(2). The question of what the material describes or depicts, instructs, facilitates or supports is purely objective. 152 To be extremist, the material must directly or indirectly advance a political, religious or ideological cause, by being intended to assist, encourage or induce a person to engage in, plan or prepare for an intimidatory act, or be associated with an intimidatory act in one of a number of ways: s 474.45A(1)(b) and (c). As explained, an intimidatory act is an act which is a violent action, or a threat of violent action, done with the intention of intimidating an Australian or foreign government or the public. Again, whether material is of this description is a purely objective question based upon the consideration of a reasonable person. 153 Section 474.45B makes it an offence to access or distribute VEM by using a Commonwealth carriage service. The offence requires that an offender has intentionally engaged in accessing or distributing VEM, but the fault element related to the nature of VEM is recklessness: s 474.45B(2). In other words, it is necessary to prove that the alleged offender intended to access or distribute the material, but it is only necessary to establish that the alleged offender was reckless as to whether the material was, objectively, within the definition of VEM. 154 This is consistent with the offence being more concerned with the effect upon society of VEM material being obtained and distributed, rather than with the mental state of the offender. If the gravamen of the offence was to punish the offender for intentionally or knowingly distributing VEM, the fault element related to whether the material was VEM would be 'intention' or 'knowledge', rather than 'recklessness'.78 78 Criminal Code (Cth) s 5.1 - 5.6. -- 44 of 64 -- [2026] WASCA 61 THOMSON P Page 45 155 That emphasis upon the nature of VEM, and the effect which it has upon society, is confirmed by the Revised Explanatory Memorandum, at [279],79 which specifically identifies the following harms which arise from the nature of VEM, being that it: (a) facilitates radicalisation; (b) may encourage and assist in planning violent acts. These acts can threaten public safety, and Australia's core values and principles, including human rights, the rule of law, democracy, equal opportunity and freedom. While Australians are free to hold and communicate a variety of beliefs, the use or advocacy of violence to promote these beliefs is unacceptable; and (c) adversely affects social cohesion as it can vilify and portray or encourage violence against certain groups in society. Australians have the right to live free from discrimination, hatred and violence. Sentencing considerations for terrorism offences 156 Section 16A(1) of the Crimes Act provides that, in determining the sentence to be imposed, in respect of any person for a federal offence, a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. 157 The legislature may choose to criminalise acts which are preparatory or a precursor to a primary terrorism offence. Where that occurs, it is 'appropriate' (for the purposes of s 16A(1)) to impose a penalty upon the basis that Parliament has expressly chosen to penalise such preliminary acts.80 158 In Lodhi v The Queen, Price J said:81 The present offences, however, are not crimes of attempt. Sections 101.4, 101.5 and 101.6 of the Criminal Code (Cth) extend criminal liability to acts of preparation. The proximity between the criminal act and the commission of the substantive offence is necessarily more remote. These are anticipatory offences which enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it. The proximity between the preparatory act and 79 This is a permissible use of explanatory memoranda under s 15AB of the Acts Interpretation Act. 80 Lodhi v The Queen [2007] NSWCCA 360; (2007) 179 A Crim R 470 [79], [211], [229]. 81 Lodhi v The Queen [229]. -- 45 of 64 -- [2026] WASCA 61 THOMSON P Page 46 the completion of the offence, although relevant, does not determine the objective seriousness of such an offence. It does not follow that as long as the preparatory acts relied upon to constitute the offences are in their infancy criminal culpability must necessarily be low. The main focus of the assessment of objective seriousness must be the offender's conduct and the offender's intention at the time the crime was committed. (original emphasis) 159 In the present case, the offence of distributing VEM was described by the sentencing judge as a 'precursor' offence, because the actions constituting such an offence might contribute to an environment where there was a groundswell of hatred, eventually resulting in the commission of actual violence or terrorism towards certain groups.82 Categorising it as a 'precursor' offence does not mean it is not a serious offence. 160 A good comparison is provided by the circumstances of R v Khazaal.83 That case involved an offence against s 101.5(1) of the Criminal Code (Cth). This makes it an offence for a person to knowingly collect or make a document, where the document is in connection with the preparation for, the engagement of a person in, or assistance in a terrorist act. The accused prepared a book which he compiled in Arabic titled 'Provisions on the Rules of Jihad'. This was assembled from a number of downloads which the accused made from the internet. 161 Parts of the book promoted methods of assassination and the commission of acts of violence against various Western governments, in the name of restoring the nation of Islam. For example, there was a chapter entitled 'Reasons for Assassination', which included parts addressing topics about 'Characteristics of the assassination team', 'Optimal conditions for assassination', 'Features and stages of the assassination process', 'Aspects of the assassination mission', 'Methods and means of assassination', 'Targets that should be assassinated' and 'Benefits of assassination'.84 162 In considering the objective gravity of the offending, Latham J said:85 [T]he offence created by s 101.5(1) is designed to target conduct which renders more likely the carrying out of a terrorist act. The attachment 82 WAB 122 - 123; ts 68 - 69. 83 R v Khazaal [2009] NSWSC 1015 (Latham J) (Khazaal). 84 Khazaal [3]. 85 Khazaal [9] - [11]. -- 46 of 64 -- [2026] WASCA 61 THOMSON P Page 47 of criminal responsibility to such conduct, whether or not an act of terrorism ultimately takes place, was emphasised by Spigelman CJ in Lodhi v R [2006] NSWCCA 121 at [66] as a significant feature of the legislative regime under Part 5.3: It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgement has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, for example, well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy. In Lodhi v R [2007] NSWCCA 360 at [79], the Chief Justice said: The provisions creating the offences are directed to preparatory acts and the seriousness with which Parliament regards such acts is manifest in the maximum penalty. By the extended range of conduct which is subject to criminal sanction, going well beyond conduct hitherto generally regarded as criminal, and by the maximum penalties provided, the Parliament has indicated that, in contemporary circumstances, the threat of terrorist activity, requires condign punishment. The prisoner's submission that the above dicta from Lodhi is of little assistance in the circumstances of this case, because it was never suggested that the prisoner was to engage in terrorist activity himself, entirely misses the point. The dissemination of extremist literature, connected or unconnected with a terrorist plot, is caught by the legislative scheme, no doubt because literature of the type sourced by the prisoner is capable of, and has been shown to, foment terrorist activity. 163 Latham J went on to say:86 The inability of the Crown to demonstrate any nexus between the making and publication of the document by the prisoner and the commission of any terrorist act does not substantially affect the assessment of the objective gravity of the offence. In circumstances where material of this nature is published on an internet site, chosen by the prisoner because of its connection with adherents of violent struggle against the enemies of Islam, allowing for almost instantaneous and international distribution, the Crown may never be in a position to bring forward evidence of the identity or numbers of people who read the document, or whether they are influenced by its content to commit terrorist acts. That is precisely why the gravamen of the offence lies in 86 Khazaal [15]. -- 47 of 64 -- [2026] WASCA 61 THOMSON P Page 48 the construction of a document likely to facilitate a terrorist act, whether or not such an act occurs. 164 Having regard to the detail of the methods of assassination prescribed, Latham J came to the view that the offending in that case was not far removed from the worst category of an offence under s 101.5(1).87 A sentence of 12 years' imprisonment was imposed in that case. 165 The significance of Khazaal for present purposes is that it demonstrates the serious nature of distributing VEM. It is not appropriate to diminish the significance of such offending by characterising it as a 'preparatory' or 'precursor' offence. 166 Section 16A(2) of the Crimes Act prescribes various matters which a court must take into account in imposing an appropriate sentence for federal offences. These matters are to be taken into account to the extent that they are 'relevant and known to the court'. The prescribed matters include: the nature and circumstances of the offence (paragraph (a)); the personal circumstances of any victim of the offence (paragraph (d)); the deterrent effect that any sentence may have on the person or other persons (paragraphs (j) and (ja)); the need to ensure that the person sentenced is adequately punished for the offence (paragraph (k)); the character, antecedents, age, means and physical or mental condition of the person sentenced (paragraph (m)); and the prospect of rehabilitation of the person sentenced (paragraph (n)). 167 Where terrorism offences are concerned, two of these sentencing considerations have, in particular, generated some debate. These are the general and specific deterrent effect of a sentence, and the prospects of rehabilitation for an offender. General and specific deterrence 168 The particular difficulty which arises in the context of terrorism offences is that the motivation to commit such offences is often based upon ideological, political or religious motives. Where that is true, the specific and general deterrent effect of a sentence may be reduced, as it is less likely to alter the ideological, political or religious motives of the offender or similarly inclined persons. Indeed, the incarceration and sentencing of an offender may, in some circumstances, strengthen the resolve of the offender and his or her group. 87 Khazaal [21]. -- 48 of 64 -- [2026] WASCA 61 THOMSON P Page 49 169 In Lodhi v The Queen, Spigelman CJ considered that general and specific deterrence 'may be entitled to less weight whenever it appears, as the example of suicide bombers suggests, that the force of an ideological or religious motivation is such that deterrence is unlikely to work'.88 170 It may be objected that the example of the suicide bomber is unhelpful and does not establish that general and specific deterrence should be given reduced weight. In DPP (Cth) v MHK,89 the Victorian Court of Appeal observed:90 There are a number of responses to that proposition. First, it is not the case that, in each instance, or perhaps even in the majority of instances, terrorists, and intending terrorists, commit, or plan to commit, acts in which they themselves will be killed. Indeed, in the present case, it is not clear, at all, that that was the intention of the respondent. Further and in any event, the submission made on behalf of the respondent contains a logical flaw. In each case, as in the present case, the preparation and planning for a terrorist act takes some time. It is during that timeframe that the concept of general deterrence may have some important effect. Put simply, those planning to commit acts of terror must appreciate that, if they are apprehended in the process of preparing to perpetrate such acts, they will forfeit their liberty to live within our community for a very lengthy period of time. It is in that way that those seeking to enjoy a perverted form of glory, or satisfaction, from the perpetration of such acts, can be brought to understand that the cost to them, if they are intercepted, will be particularly high. Further, and in any event, it is not for the courts to 'second-guess' the mentality of persons intending to embark on acts of terror. No doubt the mindset of such persons may well vary. The law can only do its best to endeavour to deter such acts, by imposing sentences that may alter the calculations of persons minded to commit such abominable acts as those that were under contemplation in the present case. 171 Whichever view is taken as to the weight to be accorded to general deterrence, this should be regarded as a separate sentencing aim from the concept of protection of the community, which encompasses incapacitation of the offender.91 Even if the significance of general deterrence is given less weight, the need to protect the community remains a paramount consideration.92 88 Lodhi v The Queen [87]. See also Khazaal [45]. 89 DPP (Cth) v MHK [2017] VSCA 157; (2017) 267 A Crim R 235 (Warren CJ, Weinberg & Kaye JJA). 90 DPP (Cth) v MHK [53]. 91 Lodhi v The Queen [92]; DPP (Cth) v MHK [54]. 92 Lodhi v The Queen [109]; DPP (Cth) v MHK [54]. -- 49 of 64 -- [2026] WASCA 61 THOMSON P Page 50 Rehabilitation prospects 172 It may also be that the prospect of rehabilitating an offender is lower than usual due to an offender's beliefs. Altering strongly held or deeply entrenched ideological, political or religious motives is often a difficult and challenging task. Where such circumstances exist, rehabilitation of the offender will often be a matter which carries lesser weight than usual. However, that is not due to the inherent nature of terrorism offences, but rather to a generalisation which may often (but not always) be true in respect of the class of people likely to become offenders. 173 As well, another reason has been given for giving lesser weight to the prospects of rehabilitating an offender who has committed a terrorism offence. In Lodhi v The Queen, Price J said that:93 A terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence and retribution. 174 In DPP (Cth) v Besim, the Victorian Court of Appeal went further and commented that '[t]he greater the objective gravity of an offence, the less likely it is that factors such as general deterrence, denunciation, and retribution will cede to the interests of rehabilitation'.94 In other words, as terrorism offences become more 'outrageous', more weight is given to protection of society, personal and general deterrence and retribution. 175 The reduced importance of rehabilitation where there is an 'outrageous offence' which requires condign punishment is not a principle specific to terrorism offences. It applies whenever there is a serious offence. For example, in Director of Public Prosecutions v Lawrence,95 the offender was convicted of intentionally causing serious injury to another person. Batt JA said:96 Further, as the cases make clear, with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender's youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As 93 Lodhi v The Queen [274]. See also Khazaal [47]; DPP (Cth) v Besim [2017] VSCA 158 [114] (Warren CJ, Weinberg & Kaye JJA). 94 DPP (Cth) v Besim [116]. 95 Director of Public Prosecutions v Lawrence [2004] VSCA 154; (2004) 10 VR 125. 96 Lawrence [22] (Winneke P and Nettle JA agreeing). -- 50 of 64 -- [2026] WASCA 61 THOMSON P Page 51 has been said, youth and rehabilitation must be subjugated to other considerations. They must … take a 'back seat' to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. (footnotes omitted) 176 I should make one further remark. Some of the matters discussed above were reduced to propositional form by Johnson J in R v Alou (No 4).97 In my view, this was by way of summarising the relevant law. However, the parties in this case adopted these propositions as the basis for their submissions in some respects.98 I consider that the submissions elevated the propositions from Alou (No 4) to the level of canonical principles, based upon the inherent nature of terrorism offences. By doing so, the submissions untethered these principles from their proper basis. I would prefer to express the relevant principles in the manner I have set out above, which explains them by reference to their underlying rationale. I observe that the propositions from Alou (No 4) were not specifically approved on the appeal in that case.99 I suspect that is because they were not regarded as anything more than a useful summary. The respondent's 'concession' 177 The respondent conceded that 'to the extent' the sentencing judge made a statement of principle, her Honour erred in finding that in relation to an offence against s 474.45B(1) 'rehabilitation … should be given relatively little weight'.100 This is a reference to the emphasised sentence in the remarks of the sentencing judge reproduced in paragraph [134] above. 178 In my view, the sentencing judge was not making any statement of principle which went beyond what was said by Price J in Lodhi v The Queen. The respondent specifically reproduced the following quote 97 R v Alou (No 4) [2018] NSWSC 221 [165] - [170] (Johnson J). 98 WAB 12 (appellant's case, appellant's submissions [15] (AS)); WAB 38 (respondent's answer, respondent's submissions [41] (RS)). 99 Alou v R [2019] NSWCCA 231; (2019) 101 NSWLR 319. 100 WAB 36 (RS [31]). -- 51 of 64 -- [2026] WASCA 61 THOMSON P Page 52 from Price J's judgment in Lodhi v The Queen in the written submissions it made to the sentencing judge:101 Rehabilitation and personal circumstances should often be given very little weight in the case of an offender who is charged with a terrorism offence. A terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence and retribution. 179 It is obvious that the sentencing judge was drawing upon this paragraph when making the statement which has been challenged, ironically, by the respondent. As I have explained, the sentencing judge carefully considered questions of rehabilitation in her reasons and made the impugned statement in a summary paragraph at the conclusion of that part of her remarks. Furthermore, as I have endeavoured to explain, in cases where an offender has deeply entrenched religious, political or ideological beliefs, the comment is entirely accurate. It is also correct where the nature of the offending conduct may be described as 'outrageous'. Difficulty only arises if the comment is elevated to the status of a canonical principle of general application to all terrorism offences. I do not consider that the trial judge intended to suggest that. 180 Consequently, I do not regard the trial judge as having erred in any way which engages the concession which the respondent is prepared to make. Appeal grounds 181 The appellant has appealed on three grounds. These have also been particularised in some detail. Putting the grounds together with their particulars, they are as follows: 1. The learned [sentencing] judge erred in assessing the objective seriousness of the Appellant's offending on the [s 474.45B] offence; Particulars The sentencing judge erred in assessing the objective seriousness of the Appellant's offending by: (a) Finding the sentencing considerations applicable to 'terrorism offences' generally (including where the offender has engaged in some act of terrorism), were to 101 WAB 170 (Crown's sentencing submissions [27]). See the relevant passage in Lodhi v The Queen [274]. -- 52 of 64 -- [2026] WASCA 61 THOMSON P Page 53 be applied equally to the sentencing of the appellant on sentencing for the [s 474.45B] offence; (b) finding the appellant's conduct in distributing violent extremist material within a group of persons likely to hold similar views to the offender or be less likely to be offended by the material was as serious or more serious than if the material had been distributed to a class of persons likely to find the material highly offensive and distressing[;] (c) Placing undue weight on the violent and extreme nature of the material in assessing objective seriousness in circumstances where the violent and extreme nature of the material is itself an intrinsic element of the offence; 2. The learned [sentencing] judge erred in determining that an offence against [s 474.45B] of the Criminal Code is an offence where rehabilitation of the offender can be given little weight. Particulars The learned [sentencing] judge erred in determining that an offence against [s 474.45B] of the Criminal Code is an offence where rehabilitation of the offender can be given little weight. (a) Applying principles applicable to 'terrorism offences' generally to the sentencing of the appellant; (b) Failing to consider whether sentencing principles applicable for different and more serious terrorism offences were necessarily applicable to the sentencing of a person on a [s 474.45B] offence; (c) The sentencing judge failed to give appropriate weight to the Appellant's subjective features including his gross immaturity, age, lack of opportunities to undertake rehabilitation in custody, his prospects of rehabilitation and the need to impose a sentence that takes into account the protection of the community - which in this case mandated significant weight to be accorded to rehabilitation; 3. The sentence imposed on the [s 474.45B] offence was manifestly excessive on the appellant; -- 53 of 64 -- [2026] WASCA 61 THOMSON P Page 54 Particulars The sentence imposed on the [s 474.45B] offence was manifestly excessive: (a) The appellant was the first…person to be sentenced for an offence against s 474.45B; (b) The sentencing judge failed to give appropriate weight to the Appellant's subjective features including his gross immaturity, age, lack of opportunities to undertake rehabilitation in custody, his prospects of rehabilitation and the need to impose a sentence that takes into account the protection of the community - which in this case mandated significant weight to be accorded to rehabilitation[;] (c) The sentence was so unjust and unreasonable that the court must conclude that a substantial wrong has occurred[;] (d) The sentence awarded to the Appellant by reference to the matters referred to in the other grounds of appeal, was manifestly excessive[.] Ground 1: Objective seriousness of the offending 182 There is a latent premise behind the supposition that the appellant's offending against s 474.45B was not objectively serious, because the offending represented a 'precursor' to committing particular and damaging acts of terrorism. As Price J in Lodhi v The Queen explained, the choice made by Parliament to criminalise precursor conduct must be respected, and itself shows that Parliament regards that conduct as serious. Khazaal provides a good example of why that is so. This was also expressly recognised by the sentencing judge in her remarks extracted at paragraph [132] above. Particular (a) 183 The appellant claims that the sentencing judge erred in assessing the objective seriousness of his offending by finding that the sentencing considerations applicable to 'terrorism offences' generally were to be applied equally to the sentencing of the appellant. At the oral hearing of the appeal, the appellant said that this error was made by the sentencing judge in her remarks extracted at paragraph [134] above.102 102 Appeal ts 19 - 21. -- 54 of 64 -- [2026] WASCA 61 THOMSON P Page 55 184 As explained, those remarks were a summary paragraph which followed a carefully structured set of sentencing reasons. The sentencing judge had identified particular mitigating factors personal to the appellant which should be considered. However, as the only relevant factors were the absence of prior convictions and the appellant's youth, it was correct for the sentencing judge to identify the dominant sentencing considerations as those based upon the legislative purpose of the offence provision. The prospect of rehabilitation was difficult to assess, because the appellant had not had access to programs and there was no evidence that he was at all disturbed by the material which he had accessed and then distributed. 185 Furthermore, it was correct for the sentencing judge to refer to considerations which would inform the appropriate punishment for terrorism offences. The offence against s 474.45B was classified as a 'terrorism offence' by the Commonwealth Parliament. 186 In any event, the sentencing considerations specifically identified by the sentencing judge were not particularly related to terrorism offences. Imposing a sentence which properly reflects punishment of the offender, protection of the community, denunciation of the conduct, and general and personal deterrence, are sentencing aims for every offence. Particular (b) 187 The appellant also complains that the sentencing judge failed to assess the objective seriousness of the appellant's offending because the judge effectively said that there was no mitigation to be found in the fact that the appellant distributed the VEM to a group of persons likely to hold similar views to him, or who were less likely to be offended by the material than ordinary members of the public. 188 The sentencing judge referred to this submission, which was actually made in respect of count 1 (not count 2), and said:103 I do not think that there is any mitigation to be found in that fact. If anything, it makes it worse because the users of that group were likely to have sympathised with the hateful things you were saying. These offences are what I would term precursor offences. That is they are offences which can occur in an environment which can contribute to a groundswell of hatred which eventually results in the commission of actual violence or terrorism towards certain groups. 103 WAB 123; ts 69. -- 55 of 64 -- [2026] WASCA 61 THOMSON P Page 56 189 In my view, there is no error in what the sentencing judge said. I do not consider that circulation of VEM to those sympathetic to the aims of a particular terrorist group would ever count as a mitigating factor. As the sentencing judge observed, such circulation may well 'contribute to a groundswell of hatred'.104 In any event, as I have mentioned, this was a comment relating to sentencing for count 1, which is not the subject of any appeal. Particular (c) 190 The third particular of ground 1 claims that the sentencing judge placed undue weight on the violent and extreme nature of the material in assessing the objective seriousness of the offending, in circumstances where the violent and extreme nature of the material was itself an intrinsic element of the offence. Complaint is made of the passage in the sentencing judge's remarks extracted at paragraph [120] above. 191 As I have explained, the focus of the offence contained in s 474.45B concerns the nature of the material which is accessed or distributed, and whether (objectively) it is to be regarded as violent and extremist. In my view, having regard to the objective character of the material, the description of the material as being a serious example of VEM, which was not at the lower end of the scale of seriousness, was entirely justified. The VEM depicted savage, cowardly and brutal murders. 192 In order to impugn the classification of an offence as high or low at a point in the scale of comparable offences, it is necessary for an appellant to undertake a process akin to challenging a discretionary judicial decision. In Clarke v R,105 R A Hulme AJA observed (with the agreement of Beech-Jones CJ at CL and McNaughton J):106 An appellate court should be 'very slow' to set aside a finding in relation to objective seriousness made by a sentencing judge exercising a broadly based discretion. In order for the applicant to succeed, it must be shown that the finding that the offending was 'within mid-range' was not open to the sentencing judge (Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) ('Mulato'); Lees v R [2019] NSWCCA 65 at [55]; Magro v R [2020] NSWCCA 25 at [31]; Fuller v R [2022] NSWCCA 203 at [80]). As further stated by Simpson J in Mulato at [46]: 104 WAB 123; ts 69. 105 Clarke v R [2023] NSWCCA 170. 106 Clarke v R [69]. See also AH v R [2023] NSWCCA 230 [49] (Leeming JA, N Adams & Dhanji JJ). -- 56 of 64 -- [2026] WASCA 61 THOMSON P Page 57 The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v R [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance. (original emphasis) 193 In a similar vein, this court said, in Lyons v The State of Western Australia107 that a sentencing judge's characterisation of the seriousness of an offender's offending involved an evaluative judgment, not a finding of fact. This court said that, often, this would mean that a challenge to a judicial characterisation of the seriousness of offending conduct should be better seen as a particular of a ground of appeal that alleges manifest excess. 194 The appellant submits that the sentencing judge acted on wrong principle and failed to consider matters relevant to the objective seriousness of the offence charged in count 2.108 As a result, the appellant says that the sentencing judge mischaracterised the offending as in the 'high range' but not at the 'highest end of the scale'.109 The actual words of the sentencing judge were that the offence was a 'very serious example of someone distributing violent extremist material'.110 However, the appellant says that the offending should have been treated as 'in the mid-range on the scale of objective seriousness'.111 107 Lyons v The State of Western Australia [2022] WASCA 81 [67] (Buss P, Mazza & Beech JJA). 108 WAB 16 (AS [25]). 109 WAB 14 (AS [19]). 110 WAB 122; ts 68. 111 WAB 21 (AS [38]). -- 57 of 64 -- [2026] WASCA 61 THOMSON P Page 58 195 The appellant appears to submit that the sentencing judge acted upon two incorrect grounds in determining the objective seriousness of the offence against s 474.45B.112 196 The first erroneous ground which the appellant apparently says the sentencing judge adopted was to find that the appellant was, in fact, motivated by an extremist ideology, or an intention to radicalise others and to propagate his own ideology, or to undermine social cohesion.113 The appellant submits that the appropriate inference to draw was that the appellant had little understanding of the gravity of what he was doing, did not even really understand the motivations of groups such as ISIS, and was likely drawn to sharing VEM material due to a fixation with violent imagery or propensity towards violence.114 197 I do not consider that the reasons of the sentencing judge demonstrate that she considered the appellant's motivation for the offending conduct as relevant to the sentencing exercise. As far as I can discern, the sentencing judge did not refer to the motivation of the appellant in making her remarks. Moreover, the written submissions of the appellant do not expressly refer to any passages of the sentencing remarks which disclose such an error. 198 The second erroneous ground which the appellant identifies starts with the proposition that the nature of the offence against s 474.45B concerns violent extremist material. The appellant submits that this this implies that any material which is accessed or distributed contrary to the provision will likely be disturbing or shocking, and that it is impermissible 'double-counting' to regard disturbing or shocking material as elevating an offence to the high-end of seriousness.115 The appellant submits that the VEM in this case should not be regarded at the high-end of the scale of seriousness, notwithstanding that the appellant's submissions expressly accept that the material depicted was 'despicable, depraved and extreme violence' and was 'graphic and disgraceful'.116 199 I am wholly unable to accept that there was any wrong principle involved in considering that material of the nature which I have described in this case could not be regarded as at the high-end of the scale of objective seriousness for VEM. I consider that the type of 112 WAB 26 (AS [26]). 113 WAB 20 (AS [36]). 114 WAB 20 (AS [37]). 115 WAB 17 (AS [26(2)]). 116 WAB 19 (AS [32]). -- 58 of 64 -- [2026] WASCA 61 THOMSON P Page 59 material in this case compels the descriptions which have been applied to it, and is at the high end of the type of material intended to be covered by this offence provision. 200 In my view, focusing upon the character of the VEM in this case, there was no error by the sentencing judge in concluding that the offending conduct in this case was at the high-end of the scale of seriousness. I do not regard the sentencing judge as having placed undue weight on the violent and extreme nature of the material, for the reason that this is the focus of what constitutes the offending conduct. 201 For these reasons, I would grant leave to appeal on ground 1, but conclude that this ground of appeal should be dismissed. Ground 2: Rehabilitation of little weight 202 I have addressed above the question of whether there was an error of law by the sentencing judge by reason of her making the remark that:117 Rehabilitation and personal circumstances of the offender are also relevant but should be given relatively little weight. 203 For the reasons which I have explained, I do not consider that there was any error in principle by the sentencing judge making this observation. 204 This leaves the question as to whether the sentencing judge gave 'appropriate weight' to the matters of rehabilitation and personal circumstances in the present case. That is, did the sentencing judge appropriately give weight to the appellant's subjective features, including his gross immaturity, age, lack of opportunities to undertake rehabilitation in custody, his prospects of rehabilitation and the need to impose a sentence to adequately protect the community? 205 The sentencing judge specifically referred to the appellant's gross immaturity, his youth, his prospects of rehabilitation, the lack of opportunity for him to undertake rehabilitation in custody and the need to impose a sentence to adequately protect the community. Consequently, all of the matters which she ought to have considered were the subject of express discussion in the sentencing judge's remarks. 117 WAB 127; ts 73. -- 59 of 64 -- [2026] WASCA 61 THOMSON P Page 60 206 Moreover, the learned sentencing judge considered that there was no evidence that the appellant had reformed his extremist views, and concluded that the appellant had an elevated risk of reoffending and of becoming even more radicalised. 207 In my view, having regard to the need to protect the community and to ensure general deterrence against this type of offending, the sentencing judge appropriately and adequately weighed all of the relevant factors. I do not see any basis upon which this court could interfere with the exercise of the sentencing discretion by the sentencing judge. 208 For these reasons, although I would grant leave to appeal on this ground, I would dismiss ground 2 of the appeal. Ground 3: Sentence manifestly excessive 209 The particulars for this ground effectively allege that the sentence of immediate imprisonment of 2 years and 6 months on count 2 was manifestly excessive on the grounds that:118 (a) this was a case where significant weight ought to have been accorded to rehabilitation, having regard to the appellant's gross immaturity, age, lack of opportunities to undertake rehabilitation in custody, his prospects of rehabilitation and the need to impose a sentence that took account of the protection of the community (particular (b));119 (b) the sentencing discretion was exercised erroneously due to the other errors identified in grounds 1 and 2 (particular (d)). In other words, the exercise of the sentencing discretion miscarried because: (i) the seriousness of the offence was at the bottom of the hierarchy of terrorism offences,120 and the particular conduct here was, objectively, at the upper end of the low range, or in the mid-range, of potential offending against s 474.45B, rather than at the high-end (ground 1);121 118 WAB 24 - 25 (AS [53]). 119 WAB 25 (AS [53(4)]). 120 WAB 24 (AS [53(1)]). 121 WAB 25 (AS [53(2)]). -- 60 of 64 -- [2026] WASCA 61 THOMSON P Page 61 (ii) the sentencing judge gave little weight to the prospects of rehabilitation (ground 2).122 210 As the respondent points out, the suggestion that the sentence of 2 years and 6 months is manifestly excessive is a rather surprising proposition for the appellant to make.123 The appellant submitted to the learned sentencing judge that a head sentence in the range of 2 - 3 years 'would fall within the range of appropriate sentences with a non-parole period set that both provides an opportunity [for] the relevant authorities to assess the offender in terms of the most appropriate treatment regime, his criminogenic needs and other appropriate conditions for release'.124 211 To a large extent, ground 3 repeats much of what has already been raised in respect of grounds 1 and 2. 212 For the reasons which I have already outlined, I do not regard the offending conduct in this case as in the lower end or mid-range of conduct which is covered by s 474.45B. As I have said, the explicit depiction of cold-blooded murders compels classifying this conduct as at the high end of offending conduct. 213 Further, I do not regard this as a case where rehabilitation should have been given 'significant weight'.125 Neither the pre-sentence report nor the report of the Ms Fowler suggested that there were good prospects of rehabilitation. Rather, Ms Fowler considered that the appellant presented with a significant lack of insight into the seriousness of his thoughts, feelings, and behaviours which underpinned his violent attitudes and beliefs. His lack of insight was regarded as a concern, and was relevant to his risk of future offending.126 Ms Fowler considered that the appellant's lack of insight into his violent attitudes meant that he required structured psychological treatment to challenge his violent attitudes, which he had linked to his definition of masculinity, and which had become normalised in his mind.127 Having said that, the report considered that the future risk of the appellant becoming violent himself was not imminent.128 122 WAB 25 (AS [53(3)]). 123 WAB 31 (RS [2]). 124 WAB 198 (defence sentencing submissions [71]). 125 WAB 7 (appellant's case, ground 3, particular (b)). 126 Psychological report [56], see also at [74]. 127 Psychological report [75]. 128 Psychological report [61]. -- 61 of 64 -- [2026] WASCA 61 THOMSON P Page 62 214 The appellant also sought to argue that his sentence was manifestly excessive, having regard to the decision of a judge of the District Court of Western Australia in relation to another VEM offence. This was in a case called Fletcher,129 where the offender possessed 89 videos and 25 images of ISIS material. The sentencing judge described the material as 'graphic, brutal, horrific and distressing'.130 215 However, Fletcher was significantly different to the present case. It involved a 26 year old man, with autism spectrum disorder, which was complicated by body dysmorphia, attention deficit hyperactivity disorder and substance abuse. These disorders reduced his ability to make appropriate or rational judgments. 216 The sentencing judge found that there was a causative link between the offending and the offender's diagnosis of autism spectrum disorder. Her Honour also found that the offender did not appear to present a risk of re-offending in a violent way. The sentencing judge did not find that the offender held any extremist ideology or had been radicalised. It was held that the offender rather had a 'fixation' with collecting and archiving VEM due to his mental health issues, particularly his autism. Due to the very particular circumstances of the offender, especially his mental health issues, the sentencing judge considered that the need to apply a sentence reflecting general deterrence was moderated (although not eliminated) because the offender was not an appropriate person to use as an example to others.131 217 The offender received a sentence of 8 months' imprisonment. 218 In my view, the offender in Fletcher was distinctly different from the appellant in the present case. The appellant in the present appeal has no mental health issues equivalent to those in Fletcher. Moreover, in my view, the gravamen of an offence against s 474.45B relates to the nature of the material, and the possession and distribution of it. There was no focus in Fletcher about any circulation of the VEM to other people. That is a significant distinguishing factor from the present case, where the Telegram group comprised of 105 members and the appellant's Instagram profile was open to the public. 129 Transcript, The State of Western Australia v Nathan Fletcher; The King v Nathan Fletcher, District Court of Western Australia, 28 March 2025 (Christian DCJ). 130 WAB 313 (Fletcher 9). 131 WAB 312 (Fletcher 8). -- 62 of 64 -- [2026] WASCA 61 THOMSON P SEAWARD JA Page 63 219 Moreover, due to the very particular differences of Fletcher, I do not accept that it set any form of precedent or customary sentencing standard for offences against s 474.45B. I do not consider that it may be relied upon to demonstrate that the sentence in the present case was manifestly excessive. 220 In my view, the sentence imposed in this case was entirely appropriate, having regard to the maximum penalty, the objective seriousness of crimes of the present type, and the offender's personal circumstances.132 As this is the first intermediate appellate court to consider sentencing for an offence against s 474.45B, I consider that leave to appeal should be granted. However, for the reasons which I have set out, I consider that this ground of the appeal should be dismissed. Conclusion 221 This case raises new matters of legal principle. For that reason, leave to appeal should be granted on each of the grounds. However, for the reasons which I have given, the appeal should be dismissed. SEAWARD JA: 222 I agree with Quinlan CJ. 132 Compare Kabambi v The State of Western Australia [2019] WASCA 44 [21]. -- 63 of 64 -- [2026] WASCA 61 THOMSON P SEAWARD JA Page 64 I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia. DC Associate to the Honourable Justice Thomson 1 MAY 2026 -- 64 of 64 --