DUNCAN CROMB v THE KING [2024] SASCA 8

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE TRACEY) DCCRM-22-006040, DCCRM-22-004259 First Applicant: DUNCAN CROMB Counsel: MR J WILSON - Solicitor: SHAW & HENDERSON Second Applicant: JACKSON PAY Counsel: MRS M SHAW KC - Solicitor: CARTER & CO LAWYERS Respondent: THE KING Counsel: MR M HINTON KC DPP (ON 21/11/2023), MR W SCOBIE AND MS J HOULAHAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 21/11/2023, 23/11/2023 File No/s: SCCRM-23-023117; SCCRM-23-022250 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. CROMB v THE KING; PAY v THE KING [2024] SASCA 8 Judgment of the Court of Appeal (The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice Kimber) 8 February 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO- OFFENDERS AND OTHER RELATED OFFENDERS CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AND OTHER MATTERS RELATING TO TERRORISM - TERRORIST ORGANISATION The applicants each pleaded guilty to one count of possessing a document or record containing information of a kind likely to be of practical use to a person committing a terrorist act, contrary to s 83CA of the Criminal Law Consolidation Act 1935 (SA). Each applicant possessed the same two documents in hard copy and electronic form. The documents were authored by notorious extremists and contained instructions on how to conduct violent attacks and cause widespread disruption. At the time of the offence, both applicants held, or had held, leadership positions within extremist white supremacist groups. At the time of sentence, each applicant continued to hold the views which led them to possess the documents the subject of the offence. After reductions of 15 per cent discount for the guilty pleas, Mr Cromb received a head sentence of two years, six months and 19 days with a non-parole period of 18 months and Mr Pay received a -- 1 of 28 -- head sentence of two years, one month and 16 days with a non-parole period of 14 months. The sentencing Judge refused to order that the sentences be suspended or served on home detention. Both applicants appeal their respective sentences. Mr Cromb contends there is unjustified disparity between his sentence and that imposed on Mr Pay. Mr Cromb also contends that the sentencing Judge erred in her assessment of his risk of reoffending; his risk to the safety of the community; and his prospects of rehabilitation. Mr Pay contends the sentencing Judge erred in her assessment of his prospects of rehabilitation; in her approach to his autism spectrum disorder and that he was sentenced for a different offence to that the subject of his guilty plea. Both applicants contend that the sentencing Judge found that in committing the offence, they intended to cause fear and distress and contend that finding was not open. Both applicants contend that their respective sentences are manifestly excessive. Held per the Court, granting permission to appeal and dismissing the appeal: Mr Cromb 1. The difference in the sentence of Mr Cromb compared to that of Mr Pay is justified by Mr Pay being substantially younger than Mr Cromb with the consequence that Mr Pay’s views were not as longstanding or apparently entrenched, making him more amenable to rehabilitation. Mr Cromb does not have a justifiable sense of grievance. 2. The sentencing Judge did not err in her approach to the risk of reoffending and rehabilitation of Mr Cromb. The approach that was taken was open on the material before the sentencing Judge. Mr Pay 3. The sentencing judge did not err in her approach to the risk of reoffending and rehabilitation of Mr Pay. The approach that was taken was open on the material before the sentencing Judge. 4. The sentencing Judge did not err in her approach to the autism spectrum disorder of Mr Pay. On the material before the sentencing Judge, the severity of that disorder was not such that it reduced moral culpability, diminished the significance of general or person deterrence and did not necessitate a finding that imprisonment might weigh more heavily upon Mr Pay. 5. The sentencing Judge did not sentence My Pay for any offence other than the offence to which he had pleaded guilty. Mr Cromb and Mr Pay 6. The sentencing Judge did not find that in committing the offence, the applicants likely intended to cause fear and distress. The observation the sentencing Judge made was about terrorism offences more broadly and was one which was open. 7. The respective sentences imposed are not manifestly excessive. For offences of this type, general deterrence and the protection of the safety of the community have particular importance. Subjective circumstances and mitigating factors have comparatively less weight. The material the subject of the offences and the circumstances in which it was possessed, including the applicants’ membership of white supremacist organisations, made it a serious example of the offence. Personal deterrence was important, particularly as each applicant continued to hold the views that led them to commit the offence. Counter-Terrorism Legislation Amendment (Prohibit Hate Symbols and Other Measures) Act 2023 (Cth); Criminal Code Act 1995 (Cth) Part 5.3, s 474.45C; Criminal Law Consolidation Act 1935 (SA) s 83CA; Sentencing Act 2017 (SA) s 11; Terrorism Act 2000 (UK) ss 57, 58, referred to. De Simoni v The Queen (1981) 147 CLR 383; Hackett v the Queen [2021] SASCA 32; Hassan v The Queen [2022] SASCA 56; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; R v Alou (No 4) (2018) 330 FLR 402; R v Engert (1995) 84 A Crim R 67; R v G; R v -- 2 of 28 -- J (R v G) [2010] 1 AC 43; R v Guode (2020) 267 CLR 141; R v Hunter [2017] SASCFC 97; R v Lutz (2014) 121 SASR 144; R v McGaffin [2010] SASCFC 22; R v Wiskich (2000) 207 LSJS 431; The Queen v Olbrich (1999) 199 CLR 270; Veen v The Queen (No 2) (1988) 164 CLR 465, applied. R v Alou (No 4) (2018) 330 FLR 402, discussed. -- 3 of 28 -- -- 4 of 28 -- CROMB v THE KING; PAY v THE KING [2024] SASCA 8 Court of Appeal — Criminal: Bleby and David JJA and Kimber AJA THE COURT: Introduction 1 These are appeals against sentence. Both applicants pleaded guilty to one count of possessing a document or record containing information of a kind likely to be of practical use to a person committing or preparing a terrorist act, contrary to s 83CA of the Criminal Law Consolidation Act 1935 (CLCA). The maximum penalty for that offence is imprisonment for seven years. 2 Mr Cromb was sentenced to a term of imprisonment of two years, six months, and 19 days, reduced on account of his guilty plea from a starting point of three years. Mr Pay was sentenced to a term of imprisonment of two years, one month and 16 days, reduced on account of his guilty plea from a starting point of two years and six months. In respect of both applicants, the sentencing Judge refused to order that the sentence be suspended or served on home detention. 3 For the reasons which follow, we grant permission to appeal but dismiss the appeals. The grounds of appeal 4 Mr Cromb appeals his sentence on the following grounds: 1. The sentence was manifestly excessive; 2. The sentencing Judge erred in failing to suspend the sentence; 3. There was an unjustified disparity between the sentence imposed on Mr Cromb and Mr Pay; 4. The sentencing Judge erred in her assessment of his risk of reoffending and the risk he posed to the community; 5. The sentencing Judge erred in finding that he would not be amenable to the supports and education that a psychologist who had assessed him considered appropriate; and 6. The sentencing Judge erred in her characterisation of the offending, namely that the offending was likely intended to cause fear and distress. 5 Mr Pay appeals on the following grounds: 1. The sentence is manifestly excessive; -- 5 of 28 -- [2024] SASCA 8 The Court 2 2. The sentencing Judge erred in her approach to assessing his risk to community and likelihood of reoffending; 3. The sentencing Judge erred in her approach to evaluating his rehabilitative prospects, particularly given his views and vulnerability due to a diagnosed medical condition; 4. The sentencing Judge erred by not confining her consideration of relevant factors in imposing sentence to those associated with the elements of the offence to which he pleaded guilty; 5. The sentencing Judge erred in addressing the question of rehabilitation; 6. The sentencing Judge erred in not finding good reason to suspend the sentence of imprisonment; and 7. The sentencing Judge erred in characterising the offence, specifically that it was likely intended to evoke fear and distress. The offending 6 The applicants were both members of groups known as the National Socialist Network (the NSN) and European Australian Movement (the EAM), which at the time of the offending were being investigated by the Counter Terrorism and Security section of police. The NSN and EAM promote white supremacist ideology and activism. In South Australia, the EAM promotes itself as the South Australian Mens Health Club (the SAMHC), which it uses as an organisational front and recruiting ground from which it inducts people into the views and values of the EAM. 7 Mr Cromb was in a leadership position within the NSN. He had been involved in the organisation since 2017 and in the months before the offence, he was the chairman. Mr Pay had also occupied a position of seniority. He had previously held the role of secretary and later was placed in charge of the NSN for about six weeks. Mr Pay subsequently relinquished this leadership position and assumed an ‘advisory position’. 8 On 7 April 2021, police officers attended at the home of the applicants where others also resided. A search located the material the subject of the offence, along with other relevant material, including white supremacist material and items relating to the EAM. 9 The documents the subject of the offence to which Mr Cromb pleaded guilty were: • A hardcopy document titled, ‘A Practical Guide to the Strategy and Tactics of Revolution’ by David Myatt (the Myatt Book), located inside the bookcase in the lounge room. -- 6 of 28 -- [2024] SASCA 8 The Court 3 • Three electronic copies of the document titled ‘2083 – A European Declaration of Independence’ by Anders Breivik (the Breivek Document), located on two separate hard drives in his bedroom. 10 The documents the subject of the offence to which Mr Pay pleaded guilty were: • The same hardcopy document of the Myatt Book located inside the bookcase in the lounge room. • An electronic copy of the Myatt Book, located on a hard drive in his bedroom. • An electronic copy of the Breivik Document, located on a hard drive in his bedroom. 11 As can be seen, the material in the possession of each applicant was substantially the same. Mr Cromb was in possession of only one copy of the Myatt Book while Mr Pay was in possession of two. Mr Cromb was in possession of three copies of the Breivik Document, Mr Pay was in possession of one. 12 The accuracy of the descriptions given to the material by the sentencing Judge are not in dispute. The sentencing Judge described David Myatt as one of the world’s most dangerous extremists and summarised the content of his book in the following way:1 The document described four methods of how to conduct assassinations of individuals; terror bombing including where civilian casualties are probable; sabotage of infrastructure including roads, communication, television transmitters, airports, railways, power stations, food supplies, businesses, shops and financial institutions, and terror campaigns directed at enemies. 13 The sentencing Judge described the Breivik Document in the following way:2 This material is said to present advanced ideological, practical, tactical organisational and rhetorical solutions and strategies for all so-called patriotic minded individual movements. It contains specific instructions for people on funding operations, avoiding suspicion from relatives, neighbours and friends. The document highlights that the preferred method is to attack in a violent and deceptive form with limited forces of one to two people, noting that it is better to kill too many people than not enough. The document discusses in detail how to plan operations and prepare for attacks stating ‘Violence is the mother of change’. 14 During the search of the premises on 7 April 2021, further relevant documents were found in possession of Mr Cromb. These included documents relating to the EAM, the NSN activism manual and propaganda handbook, NSN 1 Sentencing Remarks (District Court of South Australia, Judge Tracey, 2 June 2023) 1–2 (Sentencing Remarks). 2 Ibid 2. -- 7 of 28 -- [2024] SASCA 8 The Court 4 business cards and meeting notes. Mr Cromb also had in his possession several other books and documents relating to white supremacist ideology and activism. 15 Further relevant documents were also found in the possession of Mr Pay. Located in his bedroom during the initial search on 7 April 2021 was an electronic copy of a document seeking to justify the 2019 terrorist attack in Christchurch, New Zealand. On 13 November 2021, the day of Mr Pay’s arrest, police found a notebook which contained writings addressing the topic of terrorism with the author providing examples such as the September 11 attacks and the Snowtown murders in South Australia, discussing the goal of a white Australia policy generally, and specifically identifying the EAM goal of creating a politically and racially conscious community of whites striving and driving to better themselves and their comrades mentally, physically and spiritually. 16 During sentencing submissions, an issue arose as to Mr Pay’s knowledge of the nature of the material. However, he agreed, and was ultimately sentenced, on the basis that he was aware, in general terms, that the relevant documents in his possession contained information of a kind likely to be of practical use to a person committing or preparing a terrorist act. The personal circumstances of each applicant 17 Mr Cromb was 38 years of age at the time of sentence, and 36 years of age at the time of the offending. He had no offender history. He was raised in a conservative Christian household and home-schooled until the end of year 10. He went on to complete years 11 and 12 at a conventional school and subsequently commenced study at university but struggled to establish friendships and social connections. He was engaged in casual employment between the ages of 17 and 20 and he then joined a Franciscan Monastery. He went on to live and train in seminaries interstate and in the USA but ultimately stopped following that path. 18 Mr Cromb has only had one romantic relationship and few friendships. He became disconnected from his family and spent considerable time on the internet where he became aligned with viewpoints expressing dissatisfaction with current political systems. In more recent years, Mr Cromb aligned with nationalists holding conservative viewpoints including white separatism. Mr Cromb became involved with the NSN in 2017. By 2019–2020 the group had about 10 members, with the public face of the group being the SAMHC. 19 At the time of sentence, Mr Cromb had employment immediately available to him in the shoe repair business in which he had been working for several years before his arrest. He claimed to have had a change in attitudes and values after his arrest and said that he had severed ties with his former associates in the NSN and associated organisations. Nevertheless, he continued to hold views consistent with the white separatist values. 20 Mr Pay was aged 23 years at the time of sentence, and 21 years at the time of the offending. He also had no offending history. Mr Pay’s parents separated when -- 8 of 28 -- [2024] SASCA 8 The Court 5 he was about three years of age. He was raised by his mother but had regular contact with his father. He performed well at school but started to exhibit behavioural difficulties, including anger management difficulties and rule- breaking tendencies. As a result, at the age of 12, he was assessed by a psychologist and diagnosed with Asperger’s Syndrome (which now falls under Autism Spectrum Disorder (ASD)). Mr Pay subsequently underwent some counselling but did not consider it helpful. Mr Pay did not accept the diagnosis of ASD and reported that he had been informed that his condition was ‘very mild.’ 21 After school, Mr Pay was employed with a labour hire company for about five years. He then briefly relocated to Queensland where he was employed in various positions such as delivery driver, pet food production and food packaging. At one point, he aspired to join the military but was denied entry due to his ASD. At the time of sentence, Mr Pay was employed by a labour hire company in Western Australia. His employer described him as a reliable and loyal team member. 22 Mr Pay was married to his wife of three years whom he met online through a gaming platform, and they remained together at the time of sentence. They were initially in a long-distance relationship until she was able to come to Adelaide in early 2022. Mr Pay’s friendship circle had consisted mainly of friends from the NSN, with the founder being his best friend. He did not consider himself to have a strong social connection to the group, and since the offending he had ceased to maintain those connections as it was a condition of his bail. 23 Both applicants provided psychological reports to the sentencing Judge which were the subject of detailed summary in her remarks. Given the grounds of appeal, it will be necessary to refer to those reports when dealing with the grounds of appeal. Section 83CA of the CLCA 24 The offence created by s 83CA has not previously been considered by this Court. Section 83CA provides: (1) A person who, without reasonable excuse— (a) collects or makes a record of information of a kind likely to be of practical use to a person committing or preparing a terrorist act; or (b) has possession of a document or record containing information of that kind, is guilty of an offence. Maximum penalty: Imprisonment for 7 years. 25 Section 83CA was introduced by the Statutes Amendment (Extremist Material) Act 2017 (SA). It is modelled on an offence contained in s 58 of the Terrorism Act 2000 (UK) and is aimed at criminalising the possession of extremist material to provide for the intervention of the criminal law at an early stage in the -- 9 of 28 -- [2024] SASCA 8 The Court 6 ‘life-cycle’ of a radical extremist.3 In enacting s 83CA, Parliament explicitly created an offence involving the possession of material without the need to establish a particular connection between the material and a terrorist act.4 Section 83CA is directed at the harmful nature of the material possessed by an individual and its use. The maximum penalty of seven years reflects that it is to be treated as a serious offence. 26 That the offence is directed towards material containing information that is likely to be of practical use to a person committing or preparing a ‘terrorist act’ is important. Section 83CA(4) provides that ‘terrorist act’ has the same definition as in Part 5.3 of the Criminal Code (Cth), namely:5 terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) 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 (ii) intimidating the public or a section of the public. 27 And further: (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person’s death; or (d) endangers a person’s life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or 3 South Australia, Parliamentary Debates, House of Assembly, 27 September 2017, 11180-11181 (John Rau, Attorney-General). 4 Ibid. 5 CLCA s 83CA(4). -- 10 of 28 -- [2024] SASCA 8 The Court 7 (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. 28 Given that s 83CA is modelled on s 58 of the Terrorism Act 2000(UK), it helpful to consider what has been said about s 58. 29 In R v G; R v J (R v G),6 the Appellate Committee of the House of Lords considered ss 58 and 57 of the Terrorism Act. In relation to s 58, the Committee made the following observations: 7 … the legislation makes it an offence simply to collect, record or possess information of this kind. Parliament must have proceeded on the view that, in fighting something as dangerous and insidious as acts of terrorism, the law was justified in intervening to prevent these steps being taken, even if events were at an early stage or if the defendant’s actual intention could not be established. 30 The Committee held that s 58 focuses on the nature of possessed information rather than the circumstances of possession,8 thereby rendering an accused liable for the mere possession of an item with prescribed characteristics. The offence is determined through an objective inquiry into the prescribed nature and characteristics of the item in question. The harm that a terrorist offence can cause 31 Offences involving material which can be characterised as being terrorist have the potential to be very harmful and are to be treated seriously. We agree with the respondent that this is reflected in the Explanatory Memorandum to a Bill that was recently enacted by the Commonwealth Parliament creating a similar offence to s 83CA.9 The Explanatory Memorandum to that Bill includes the following:10 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 hold and communicate a variety of beliefs, the use or advocacy of violence to promote these beliefs is unacceptable. Violent extremist 6 [2010] 1 AC 43. 7 Ibid [49]. 8 Ibid [58]. 9 Counter-Terrorism Legislation Amendment (Prohibit Hate Symbols and Other Measures) Act 2023 (Cth) inserts s 474.45C into the Criminal Code Act 1995 (in force from 8 January 2024). 10 Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Prohibit Hate Symbols and Other Measures) Act 2023 (Cth), [181]. -- 11 of 28 -- [2024] SASCA 8 The Court 8 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. Principles in sentencing for terrorism offences 32 Notwithstanding that s 83CA creates a terrorism offence which does not involve an intention to threaten or cause harm, nor is it to be treated as one intended to be preparatory to such an offence being committed, it is instructive to consider what has been said about such offences. 33 In R v Alou (No 4)11 (Alou) the offence was aiding, abetting, counselling or procuring the commission of a terrorist act which resulted in the murder of an innocent civilian by another offender. The particulars of the terrorist act were that an action involving the use of a firearm was to be done or threatened with the intention of advancing a political, religious or ideological cause. The offender was a radicalised supporter of the so-called Islamic State — a fanatical terrorist organisation that promotes and inflicts violence in furtherance of its extremist ideology.12 34 In discussing the sentencing principles applicable to terrorist offences, Johnson J held:13 A number of principles have been identified by Courts in Australia and the United Kingdom with respect to sentencing for terrorist offences. The primary considerations on sentence for terrorist offences are the protection of the community, the punishment of the offender, the denunciation of the offending and both specific and general deterrence. Subjective circumstances and mitigating factors, including considerations of rehabilitation, are to be given less weight. The religious and ideological motivation of an offender is relevant to the issue of community protection, as well as to the assessment of the objective gravity of the offence. Where it is not established that an offender has resiled from previously held extremist views, the element of community protection will assume even greater importance. Weight must be given to the need for general deterrence even if the force of ideological or religious motivations are such that deterrence may not be effective. Whilst youth is relevant to determining the weight to be given to general deterrence and denunciation in the sentencing equation, its weight is diminished quite measurably in terrorist cases where the offender participates in, plans or carries out actions of extreme violence. The protection of society, and the upholding of its most fundamental values, necessitates that in terrorist cases, the sentencing considerations of general deterrence and denunciation must be given primacy above the ameliorating effect of youth 11 (2018) 330 FLR 402. 12 Ibid [3]. 13 Ibid [164]–[171]. -- 12 of 28 -- [2024] SASCA 8 The Court 9 In considering the nature and gravity of terrorist offences, courts in Australia have utilised a number of factors referred to by the UK Court of Appeal in R v Kahar at [19]. The factors referred to in R v Kahar are: (a) the degree of planning, research, complexity and sophistication involved, together with the extent of the offender’s commitment to carry out the act(s) of terrorism; (b) the period of time involved, including the duration of the involvement of the particular offender; (c) the depth and extent of the radicalisation of the offender as demonstrated (inter alia) by the possession of extremist material and/or the communication of such views to others; and (d) the extent to which the offender has been responsible, by whatever means, for indoctrinating or attempting to indoctrinate others, and the vulnerability or otherwise of the target(s) of the indoctrination, be it actual or intended. (citations omitted) The grounds of appeal 35 There are grounds which are unique to each applicant and grounds which are common. We will deal first with the grounds which are unique and which assert process errors. We commence with Mr Cromb. Mr Cromb Ground 3 — Disparity 36 Both applicants received a reduction of 15 per cent for their pleas of guilty. From a starting point of three years, Mr Cromb received a sentence of two years six months and 19 days and a non-parole period of 18 months. From a starting point of two years and six months, Mr Pay received a sentence of two years, one month and 16 days with a non-parole period of 14 months. Mr Cromb submits that there is a disparity which cannot be justified. The parity principle 37 The parity principle is based upon the concept that like cases should be treated alike and different cases differently. The principle recognises there should not be a marked disparity which gives rise to a ‘justifiable sense of grievance’ between co-offenders.14 The test is an objective one.15 38 If disparity exists, that does not, in itself, mean the appeal must be allowed. Whether there is disparity calling for interference must take account of all the circumstances of the offenders. As was observed in Postiglione v The Queen:16 14 Lowe v The Queen (1984) 154 CLR 606, 613. 15 Postiglione v The Queen (1997) 189 CLR 295, 323. 16 Ibid, 301–302. -- 13 of 28 -- [2024] SASCA 8 The Court 10 … disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances. 39 Where there are matters which require different treatment, there can be no justifiable sense of grievance. The parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. Discussion 40 To determine whether Mr Cromb has a justifiable sense of grievance, it is necessary to consider the objective and subjective factors relevant to the sentencing of him and Mr Pay. 41 It can be accepted that there was no material difference in the objective seriousness of the offence. While Mr Cromb had two copies of the Breivik Document and Mr Pay one, Mr Pay had two copies of the Myatt Book, one more than Mr Cromb. Nevertheless, there were contextual and personal matters that justified different sentences. 42 While neither applicant was to be sentenced for material not the subject of the offence, the possession of other relevant material informed the importance of personal deterrence and the need to protect the community. The possession of other material demonstrated the depth and extent of each applicant’s radicalisation, and the risk of reoffending. While Mr Pay possessed a document that Mr Cromb did not possess (the document about the Christchurch terrorist attack) and had the notebook found in November 2021, during the initial search on 7 April 2021 Mr Cromb had a more extensive collection of other relevant material in his possession. That material included, but was not limited to, white supremacist propaganda material and books and documents about white supremacy. In addition, Mr Cromb admitted that he had been in possession of the Breivik Document since 2013. As the sentencing Judge observed, Mr Cromb’s beliefs had been held for a long time. 43 As for personal matters, they have been set out earlier. Both applicants were first offenders and had relevant views which persisted at the time of sentence. Nevertheless, there was an important personal circumstance which justified a more lenient approach to Mr Pay. 44 When turning to sentence Mr Pay, the sentencing Judge expressly observed that he was a ‘young man’. At the time of the offence, he was 21 years of age and substantially younger than Mr Cromb who was 36 years of age. In R v McGaffin,17 White J (Doyle CJ agreeing) held: The youth of an offender who has attained the statutory age of majority is usually regarded as a mitigatory factor in sentencing. This may be because courts recognise that the young 17 [2010] SASCFC 22, [69]. -- 14 of 28 -- [2024] SASCA 8 The Court 11 and immature are more prone to ill-considered or rash decisions; or because they consider young offenders may not have appreciated fully the nature, seriousness and consequences of the criminality involved in their conduct; or because they recognise the potential for young offenders to be redeemed and rehabilitated; or because they consider that the effect of incarceration in an adult prison is likely to impair, rather than improve, the offender’s prospects of a successful rehabilitation. Thus, in R v Carroll, King CJ spoke of the courts being “inclined to mercy in the case of young people facing prison for the first time”. In R v Mills Batt JA endorsed the following propositions concerning the sentencing of youth offenders: (i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises. (ii) In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender). (iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. … (footnotes omitted) 45 A consequence of Mr Pay being much younger than Mr Cromb was that his views were not as longstanding or apparently entrenched as Mr Cromb’s and thus, with appropriate psychological assistance, Mr Pay was more amenable to rehabilitation. 46 For the above reasons, Mr Cromb does not have a justifiable sense of grievance about Mr Pay having received a lesser sentence. 47 Ground 3 is dismissed. Grounds 4 and 5 48 We will deal with these grounds together as Mr Cromb accepts that there is considerable overlap. Both turn upon the assessment by the sentencing Judge of Mr Cromb’s prospects of rehabilitation, risk of reoffending and risk to the safety of the community. 49 In remarks directed to both applicants and the risk of reoffending, the sentencing Judge said:18 It would, in my view, be naïve not to accept that the material found at the house you shared and your involvement in white supremist groups, is relevant to any explanation for your offending, in assessing your risk of offending again, any risk you pose to the community 18 Sentencing Remarks (n 1) 12. -- 15 of 28 -- [2024] SASCA 8 The Court 12 and to an assessment to the gravity of the offence you have each committed. I acknowledge that it is difficult to know whether offenders such as yourselves, the imposition of a sentence of imprisonment and more particularly, a sentence served in custody, deters you from further offending. I accept that little I have to say will give each of you insight into how abhorrent and distressing your views are to the community generally. 50 In identifying the sentence for Mr Cromb, the sentencing Judge said:19 With respect to your Mr Cromb I accept that your possession of the charged documents as well as your membership of the National Socialist Network and European Australian Movement and your support of their ideologies, places your offending, in the higher end of the scale of seriousness for this type of offending, despite your rejection of violence. The material found by police presented a danger to the community. There is a strong need for personal deterrence as well as public denunciation. I take into account your lack of offending history, your family support and your good prospects for employment upon your release. I would start at three years’ imprisonment, reduced on account of your plea to two years, six months and 19 days. I fix a non-parole period of 18 months. As to your prospects for rehabilitation, the psychological report I have received has not given much comfort, in assessing you as someone who has insight and who would be amenable to the supports and education that Mr Broomhall considers appropriate. In arriving at a decision with respect to the suspension of your sentence of imprisonment, I do not undervalue the general principles that apply when assessing whether to suspend a sentence of imprisonment or overlook the factors that are favourable to you. As I have said, however, denunciation and deterrence have a significant role here as does protection of the community. Mr Broomhall has reserved his view on the issue of the risk that you pose to the community and says that at least as at March this year, you continued to hold views and values consistent with white supremist values and dealignments. In those circumstances it must be said that you pose a risk to the community that you will offend again. 51 Mr Cromb contends the sentencing Judge failed to have ‘adequate regard’ to the factors that ameliorated the likelihood of Mr Cromb reoffending. In particular when arrested almost 11 months after the documents the subject of the offence were found, Mr Cromb was not in possession of like documents and further, that Mr Cromb had distanced himself from relevant organisations with which he had previously been affiliated. We reject this complaint. That a sentencing Judge failed to have ‘adequate regard’ to a relevant consideration in sentencing is not, in and of itself, capable of enlivening the authority of an appeal Court to intervene.20 52 The sentencing Judge referred to the submission that Mr Cromb no longer had contact with associates from white supremacist organisations. That he may have severed those contacts did not remove his risk of reoffending. While the sentencing Judge did not refer to Mr Cromb not being in possession of relevant material at the time of his arrest, she was not obliged to mention every matter. The more important matters were the length of time that Mr Cromb had held relevant views and their continuing persistence. As already mentioned, the Breivik Document had been in the possession of Mr Cromb for a long time; he had 19 Ibid 12–13. 20 R v Lutz (2014) 121 SASR 144, 154 [47]. -- 16 of 28 -- [2024] SASCA 8 The Court 13 downloaded it in 2013. This was some four years before he became organisationally involved in the white supremacist movement, and some ten years prior to sentence. When interviewed by Mr Broomhall almost two years after the offence and only a few months before sentence, Mr Cromb was continuing to express views consistent with white supremacist values. 53 We dismiss Ground 4. 54 In his report, Mr Broomhall had made recommendations about treatment programs and other supports which might reduce Mr Cromb’s risk. In Ground 5, the applicant contends the sentencing Judge erred in finding Mr Cromb would not be amenable to the supports and education Mr Broomhall considered appropriate. We reject this contention. 55 The sentencing Judge concluded that Mr Broomhall’s report had ‘not given much comfort, in assessing [Mr Cromb] as someone who has insight and who would be amenable to the supports and education Mr Broomhall considers appropriate’. To the extent that the sentencing Judge was not satisfied Mr Cromb would engage in education and supports which might reduce risk on the material, that approach was open. For the reasons given in Ground 4, the views of Mr Cromb were long standing and continued to be held. 56 We dismiss Ground 5. Process error grounds common to both applicants (Ground 6 for Mr Cromb and Ground 7 for Mr Pay) 57 These grounds can be dealt with together. Both applicants contend that the sentencing Judge erred in her characterisation of the offending. 58 The applicants direct attention to the following passage in the sentencing remarks: General deterrence does however play a significant role in sentencing for this type of offending where the legislation provides for earlier intervention with the aim of deterring those who contemplate becoming involved in groups such as the ones to which you belong which pray on the lonely, isolated, disillusioned and vulnerable. Offences of this kind are naturally of great concern to our community which no doubt, as is likely intended, cause fear, distress and have the potential to cause further alienation to marginalise minority groups within our community. The views you both hold are both abhorrent and distressing to the vast majority of our community. (emphasis added) 59 The applicants contend that the sentencing Judge found that when committing the offence, the applicants ‘likely intended to cause fear and distress’. From that premise, the applicants contend that they were sentenced for an offence to which they had not pleaded guilty as contemplation of fear or distress was not an element of the offence. We reject these contentions. -- 17 of 28 -- [2024] SASCA 8 The Court 14 60 On a plain reading of the way in which the sentencing Judge expressed herself (i.e. – ‘this type of offending’ and ‘[o]ffenders of this kind’), she was not referring to the specific offence committed but to terrorist offences more broadly. Further, the whole of the sentencing remarks must be considered. Earlier in her remarks the sentencing Judge accurately identified the elements of the offence and that it had been modelled on s 58 of the Terrorism Act (UK). As the sentencing Judge noted, the House of Lords held with respect to that section the defendant’s intention in relation to the document is not relevant unless it amounts to a reasonable excuse for possession of the items.21 61 Although not a conclusion drawn by the sentencing Judge, we observe that the material the subject of the offence was likely intended by the respective authors to promote violence and to cause fear and distress. As the respondent submitted, it is notorious that a driving motivation behind terrorists, and terrorist organisations, is to sow division, create fear and otherwise disrupt the ordinary functioning of society. So much may be gleaned from the ordinary meaning of the word ‘terror’.22 Mr Pay Ground 2 62 In this ground Mr Pay makes three complaints about the approach of the sentencing Judge to his risk of reoffending and risk to the community. First, that the sentencing Judge considered whether Mr Pay posed a risk of committing an offence of violence despite that not being the offence for which he was being sentenced. Second, that it was not open to find that Mr Pay posed a risk of violent offending. Third, that the sentencing Judge considered Mr Pay’s views about white supremacism when she should not have done. 63 The complaints of Mr Pay are based upon the following part of the sentencing remarks:23 With respect to you, Mr Pay, you are a young man, who has no history of offending. You have a very strong work ethic and no doubt are regarded highly by your employer. I accept because of your diagnosis, you remain vulnerable to the influence of others. That is troubling, particularly in view of your ongoing adherence to your extremist views, your concrete thinking and the sense of injustice that you have expressed to Ms Loh while you say you reject violence there is nothing in her most report that relieves my concerns. 64 We do not read the above passage as the sentencing Judge imposing sentence on the basis that Mr Pay posed a risk of violent offending. The ‘concerns’ to which reference was made were the ongoing adherence to extremist views, concrete thinking and sense of injustice. It was open to the sentencing Judge to take the 21 R v G (n 6), [49]. 22 See, eg, Macquarie Dictionary (2023) ‘Terror’ 1. Intense, sharp, overpowering fear; 2. A feeling, instance or cause of intense fear. See also the definition of ‘Terrorism’. 23 Sentencing Remarks (n 1) 13–14. -- 18 of 28 -- [2024] SASCA 8 The Court 15 view that statements rejecting violence did not make irrelevant the concerns which arose because of the matters she mentioned. 65 That is sufficient to dispose of the first two of Mr Pay’s complaints. Nonetheless, we observe that had the sentencing Judge found Mr Pay posed some risk of violent offending, that finding was open and, had it been made, would have been relevant. Ms Loh had opined that Mr Pay posed a ‘low to medium risk of violent extremism’. That the offence for which Mr Pay was to be sentenced was not one involving an act of violence, or an intention to cause violence, did not mean that if the risk identified by Ms Loh was found to exist, it was to be ignored provided he was not sentenced for an offence he had not committed. 66 As for the complaint the sentencing Judge considered Mr Pay’s views, there is no error. In this part of her remarks, the sentencing Judge was considering the significance of Mr Pay being vulnerable to the influence of others (i.e. – those who shared views like Mr Pay’s). As the sentencing Judge had noted earlier in her remarks, Ms Loh had opined that Mr Pay appeared to have minimal friendships; was largely socially isolated and that the NSN had provided him with strong social connections and a social identity. The vulnerability to the risk of influence was relevant to the risk of reoffending and prospects of rehabilitation. As the sentencing Judge observed shortly after the impugned passage:24 In my view that you continue to maintain the views previously held, your lack of insight and your vulnerability, mean that your prospects for rehabilitation, must be guarded. Grounds 3 and 5 67 Consistent with the approach of the applicant, these grounds can be dealt with together. Both relate to his diagnosis of autism spectrum disorder (ASD). 68 Under both grounds, Mr Pay submits that the sentencing Judge should have found that he had commenced rehabilitating and that the prospects of that continuing were positive. Mr Pay submitted actual rehabilitation is a much more reliable guide for the future than good prospects.25 Mr Pay directs attention to the elements of the offence; his youth; lack of criminal history; the guilty plea; co-operation in returning from interstate after the material had been found; compliance with bail; his ASD and the opinion of Ms Loh that a prison sentence would be counterproductive to rehabilitation. The remarks of the sentencing Judge 69 The sentencing Judge did not overlook any of the above matters; she made reference to each. This includes detailed reference to the opinions of Ms Loh, the diagnosis of ASD and her opinion that sentence of imprisonment would increase the risk of Mr Pay forming social connections and bonds with anti-social peers 24 Ibid 14. 25 Citing R v Hunter [2017] SASCFC 97, [61]. -- 19 of 28 -- [2024] SASCA 8 The Court 16 which may increase his future risk. Having considered all matters relevant to the rehabilitative prospects of Mr Pay, the sentencing Judge concluded:26 With respect to you, Mr Pay, you are a young man, who has no history of offending. You have a very strong work ethic and no doubt are regarded highly by your employer. I accept because of your diagnosis, you remain vulnerable to the influence of others. That is troubling, particularly in view of your ongoing adherence to your extremist views, your concrete thinking and the sense of injustice that you have expressed to Ms Loh while you say you reject violence there is nothing in her most report that relieves my concerns. While you are said to be aware that the material in your possession is an offence, you have no insight into why it might be considered illegal, or threatening to others. It is also concerning in that at least at the time of the first interview with Ms Loh, you maintained that you did not know anything about the content of the material police found. There is nothing in her second report that addresses that concern sufficiently for me. I accept that the offence with which you have been charged is a serious example of the offence. The material found in your possession presented a risk to the safety of the community. I take into account your age, lack of offending history and your exemplary compliance with bail conditions. … In my view that you continue to maintain the views previously held, your lack of insight and your vulnerability, mean that your prospects for rehabilitation, must be guarded. The recent report from Ms Loh does not add any level of comfort, particularly, given it seems you are unwilling to engage with a psychologist. While I have regard to the factors that would favour suspension of the sentence, an immediate custodial sentence is the only appropriate penalty to adequately achieve protection of the community, general and personal deterrence and to publicly denounce the offending. … 70 Contrary to the submission of Mr Pay, the material before the sentencing Judge did not demand a finding that his rehabilitation had commenced in any meaningful way, nor that he had good prospects of rehabilitation. As the sentencing Judge found, the statements he made to Ms Loh and his resistance to engaging in treatment were consistent with him holding, and being likely to hold in the future, views that increased the risk of him again committing the same offence. 71 Grounds 3 and 5 must be dismissed. The ASD of Mr Pay as a mitigating factor in sentencing 72 Although not the subject of a ground of appeal, on the hearing of the appeal, Mr Pay submitted the sentencing Judge failed to consider the impact of his ASD upon his moral culpability; personal and general deterrence; that he was vulnerable in prison; and that imprisonment would weigh more heavily on him. The relevant aspects of the reports of Ms Loh 73 The only information with respect to Mr Pay’s ASD was within the reports of Ms Loh and a report authored in 2011. Based upon her observations and other 26 Ibid 13–14. -- 20 of 28 -- [2024] SASCA 8 The Court 17 information available to her, Ms Loh agreed with a diagnosis of ASD. Ms Loh opined that there was a ‘nexus’ between the ASD and the offence. Ms Loh said: Based on my observations and the information available to me, I agree with Mr Pay's diagnosis of Autism Spectrum Disorder (ASD). At present, Mr Pay continues to present with difficulties relating to his social skills which is consistent with this diagnosis. He reported difficulty in understanding social and emotional reciprocity and struggled to understand social situations and cues for intimacy. He has impaired ability to conceptualise and reflect on his relationships. This is likely due to a lack of insight into social nuances due to his ASD. Mr Pay also appears to have some difficulty with theory of mind, which refers to the ability to view situations from other people's perspective. People with ASD can often appear to lack empathy or to have "black and white" thinking due to impairment with theory of mind. Another symptom of ASD is preoccupation with an interest that is abnormal either in intensity or focus. It is common for people with ASD to experience a hyperfixation on their hobbies or field of interest as appears to have occurred in relation to Mr Pay and his political views. Based on the information available to me, there is a clear nexus between Mr Pay’s diagnosis of ASD and his offending. Mr Pay has a preoccupation in politics, strategy, and governance. He reported doing research in these areas since he was 18 years old and engages in political discussions and groups. He also enjoys playing strategy games in which the objective is to develop and run a society. Mr Pay purchased the book he is being charged for as part of his library of political literature without knowledge of its extremist content. Mr Pay’s impairment with theory of mind and "black and white" thinking predisposes him towards perception of himself as a victim of injustice, due to limited ability for perspective taking, and rigidity in beliefs about fairness. Indeed, this is evident in Mr Pay’s childhood where he was noted to have a strong sense of justice and fairness of freedoms. Mr Pay’s preoccupation in politics and strategy caused him to engage with political discussions and exposed him to extremist groups and individuals who would further encourage his current political views. Research has suggested that people with ASD are more likely to be influenced by social groups and individuals due to their increased suggestibility and acquiescence. Mr Pay appears to have minimal friendships and is largely socially isolated as a result of his social difficulties. His main social connection is with the National Socialist Network, which he reported he used to feel strong social connection to and social identity with. Due to difficulties with building friendships and maintaining social connections, people with ASD are more likely to have fewer social groups, and to become more attached to groups that they are able to form an identity with which increases his vulnerability to their social influence. The approach of the sentencing Judge 74 The sentencing Judge did not expressly state whether she had considered whether the ASD might be relevant to his moral culpability, mitigate general and personal deterrence or cause imprisonment to weigh more heavily upon Mr Pay. In fairness to the sentencing Judge, that is unsurprising. It had not been submitted that the ASD was relevant to those issues. 75 Nevertheless, the sentencing Judge made extensive reference to the reports of Ms Loh and did not doubt her opinions about Mr Pay’s ASD. The sentencing Judge said: -- 21 of 28 -- [2024] SASCA 8 The Court 18 Based on [Ms Loh’s] observations and the information available to her, Ms Loh agreed with the diagnosis of autism spectrum disorder. She noted that it is common for people with the disorder to experience a hyper-fixation on their hobbies or field of interest, as appears to have occurred in relation to you and your political views. Ms Loh found that there is a clear nexus between your diagnosis and your offending. She noted that you appear to have minimal friendships and are largely socially isolated because of your social difficulties. The National Socialist Network gave you strong social connection, and a social identity. You have voiced frustration at the system and your perceived injustice in being treated as a criminal, which you believe to be disproportionate to the crime of ‘owning a book’. Your beliefs, she said, if unaddressed, will only be reinforced by a period of incarceration, strengthening your political vires. She adds that people with autism spectrum disorder are more vulnerable to influence by others, and within the prison system, due to increased suggestibility and acquiescence. A prison sentence would, she believes, increase the risk of you forming social connections and bonds with antisocial peers, which may serve to increase your future risk. 76 The sentencing Judge found it ‘troubling’ that Mr Pay was vulnerable to the influence of others because of his ASD. Principles 77 Section 11(1)(f) of the Sentencing Act, 2017 (SA) requires a sentencing Court to take account of the mental condition of a defendant in so far as it is known. 78 In R v Guode,27 the High Court approved of what was set out by the Court of Appeal of the Supreme Court of Victoria with respect to the ways in which a mental disorder or abnormality may be relevant to sentencing:28 1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. 2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both. 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. 27 (2020) 267 CLR 141. 28 Ibid 149 [8] quoting R v Verdins (2007) 16 VR 269, 276 [32]. -- 22 of 28 -- [2024] SASCA 8 The Court 19 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment. (footnotes omitted) 79 The mental condition of a defendant is not always mitigatory. It is necessary to assess the severity of the disorder and the gravity of the crime.29 In R v Engert, Gleeson CJ held that it is:30 … erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence of absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in light of the purposes to be served by the sentencing exercise. 80 In Veen v The Queen (No 2), it was observed:31 … mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality. Discussion 81 The sentencing Judge made no error. She did not overlook the relevant aspects of the report and the conclusions she drew were open. This was not a matter in which it was necessary to make express reference to the matters advanced for the first time on appeal. 82 On the information before the sentencing Judge, it could not be found that the severity of the ASD was such that it reduced moral culpability or necessitated the significance of general or personal deterrence being moderated. There was nothing as to the severity of the ASD other than Mr Pay reporting that he had been told it was ‘very mild.’ Ms Loh had opined that Mr Pay did not have any cognitive difficulties. There was no suggestion of impairment of intellectual function. Mr Pay told Ms Loh that he had performed well in school and had been consistently employed by a labour hire company for five years. 83 It can be accepted that there was, as described by Ms Loh, a ‘clear nexus’ between the ASD and the offence, but that nexus does not lead to a conclusion that moral culpability was reduced. The opinion of Ms Loh went no further than identifying the nexus and its contribution to a preoccupation with politics, strategy and governance. 29 R v Wiskich (2000) 207 LSJS 431, 457. 30 84 A Crim R 67, 68. 31 164 CLR 465, 476–477. -- 23 of 28 -- [2024] SASCA 8 The Court 20 84 As set out above, a mental condition does not always moderate or eliminate the significance of deterrence. In this case, as the sentencing Judge found, the ASD was a matter that informed the risk of reoffending and necessitated a guarded approach to the prospects of rehabilitation of Mr Pay. 85 As for the submission that the ASD meant that imprisonment might weigh more heavily upon Mr Pay, there was nothing before the sentencing Judge that warranted that conclusion. The opinion of Ms Loh was no more than that persons with ASD are more vulnerable to the influence of others, including within the prison system, and that a prison sentence would increase the risk of Mr Pay forming social connections and bonds with antisocial peers, which may serve to increase the future risk of Mr Pay. The sentencing Judge made express reference to that. Ground 4 86 Mr Pay contends the sentencing Judge breached the principle set out in De Simoni v The Queen32 (De Simoni) by taking account of Mr Pay’s white supremacist ideologies and membership of white supremacist organisations. Mr Pay submits that he was sentenced for conduct which was not part of the offence. Relevant principles 87 An offender is only to be punished for the offence committed. In De Simoni Gibbs CJ stated:33 If an offender has been convicted of robbery, and the indictment charges that he used actual violence to any person, it is obvious that the trial judge, in imposing sentence, may have regard to the actual violence that was used, notwithstanding that it would also constitute personal violence within s 393. On the other hand, if the actual violence resulted in wounding, the trial judge should not take the wounding into account unless it has been charged in the indictment, for the wounding is purely a circumstance of aggravation and not an element of robbery simpliciter. 88 In The Queen v Olbrich the High Court held:34 Finally, inquiring about what was done or intended by a person who imported drugs into Australia (apart, that is, from the acts which constitute the importation) will not always be relevant to sentencing that offender for the crime of importation. The offender may have conspired with others to import the drugs; the offender may very well have intended to deal with the drugs in Australia in ways that amount to the commission of other offences in this country. But it would be quite wrong to sentence an offender for crimes with which that offender is not charged. 32 (1981) 147 CLR 383. 33 (1981) 147 CLR 383 at 394. 34 (1999) 199 CLR 270 at 278–279. -- 24 of 28 -- [2024] SASCA 8 The Court 21 89 These statements of principle do not necessitate the context in which an offence is committed being ignored. As Doyle JA held in Hassan v The Queen:35 In some cases there may be a degree of difficulty, and perhaps artificiality, in determining where the circumstances of the offending end, or must otherwise be ignored, on the basis that to take them into account would be to punish the offender for an offence of which he or she has not been convicted. In the present case, the R v De Simoni principle operated to prevent the appellant being punished for unlawfully entering the victim’s home knowing that (or being Form 187C reckless as to whether) the victim was at home. But it did not require that the sentencing Judge ignore that the assault took place in the context and circumstances I have described. 90 The relevant aspects of the sentencing Judge’s remarks are:36 The fact there is no evidence of a planned target is not relevant to the charge and allows police to intervene at an early stage. I accept that despite the wealth of material gathered and your associations with the relevant groups, you are not to be punished or penalised for your beliefs, no matter how disturbing, abhorrent or distasteful they might be. Your membership with those groups is not the subject of any charge and any punishment must not inadvertently be imposed, that is greater than the offence itself, which is possession of the documents of a kind likely to be of practical use to a person committing or preparing a terrorist act. … It would, in my view, be naïve not to accept that the material found at the house you shared and your involvement in white supremist groups, is relevant to any explanation for your offending, in assessing your risk of offending again, any risk you pose to the community and to an assessment of the gravity of the offence you have each committed. I acknowledge that it is difficult to know whether with offenders such as yourselves, the imposition of a sentence of imprisonment and more particularly, a sentence served in custody, deters you from further offending. I accept that little I have to say will give each of you insight into how abhorrent and distressing your views are to the community generally. (emphasis added) 91 We reject that the sentencing Judge erred in her approach to the beliefs of Mr Pay and his membership of white supremacist groups. As the sentencing Judge observed, Mr Pay was not to be punished for his beliefs or memberships. Nevertheless, the past memberships and continuing beliefs remained relevant to the identification of an appropriate sentence. Mr Pay’s beliefs and involvement in the NSN at the time of the offence informed the gravity of the offence. The same matters, and the extent which they were still in place at the time of the offence, informed whether Mr Pay was a candidate for leniency, his prospects of rehabilitation and the extent to which the community needed to be protected. 92 We dismiss this ground. 35 [2022] SASCA 56 at [66]. 36 Sentencing Remarks (n 1) 12. -- 25 of 28 -- [2024] SASCA 8 The Court 22 The manifest excess grounds with respect to both applicants (Mr Cromb grounds 1 and 2 and Mr Pay grounds 1 and 6) 93 Both applicants contend the sentencing Judge erred in failing to suspend their sentence and that their sentences were otherwise manifestly excessive. Failure to suspend is a species of manifest excess and is subject to the same process applicable where length of sentence is in issue.37 94 The principles with respect to a contention of manifest excess are well known. In Hackett v the Queen, this Court held:38 The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case. The exercise of the discretion that the law reposes in a sentencing Judge does not yield a single correct sentence. Absent a specific error it is only if the sentence is found to be ‘unreasonable or plainly unjust’ that a challenge of manifest excess will succeed. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing Judge. The judgment is a discretionary one and what is required is that the sentencing Judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing Judge’s discretion. The submissions of the applicants 95 In submitting his sentence was manifestly excessive, Mr Cromb particularly emphasised: his absence of criminal history; the deterrent effect of his remand; his work history and availability of employment; him having severed ties with the NSN and EAM; that his offending was explained by his upbringing and lack of socialisation; the absence of any intention to prepare or commit a terrorist act; and rehabilitation being promoted by supports available in the community. 96 In submitting his sentence was manifestly excessive, Mr Pay particularly emphasised: his young age; absence of criminal history; early guilty plea and remorse; his return to South Australia after the material the subject of the offence had been found; cessation of contact with antisocial peers; strong work history and continued availability of employment; his ASD; that incarceration would be counterproductive to his rehabilitation; the opinion of Ms Loh that he was low– medium risk of violent extremism; that his possession of the documents was not accompanied by an intention to commit or prepare for a terrorist act; his exemplary compliance with bail conditions; and family support. 37 R v Lutze (2014) 121 SASR 144, 154 [49]. 38 [2021] SASCA 32 [8] (the Court). -- 26 of 28 -- [2024] SASCA 8 The Court 23 Discussion 97 We have set out earlier the nature of the material the subject of the offences and the principles which inform sentencing for an offence of this type. The primary considerations in sentencing for this offence are the protection of the safety of the community, punishment, and the need for general and specific deterrence. As Johnson J observed in Alou, subjective circumstances and mitigating factors are to be given less weight. Contrary to the submission of Mr Pay, we would not take a different approach because the offence in this case does not involve an intention to commit a violent act. As set out earlier, the offence committed by the applicants involves the possession of material that is harmful. 98 As can be seen from the summary above, both appellants relied heavily upon their subjective circumstances. Those circumstances needed to be balanced with the gravity of the offending. The content of the material in this case made it a serious example of this offence. We have set out the sentencing Judge’s undisputed summary of the documents earlier. We give some more detail. 99 Anders Breivek was a ‘lone wolf’ terrorist who killed 77 people during a terrorist attack in Norway in 2011. The Breivik Document claims to present ‘advanced ideological, practical, tactical, organisational and rhetorical solutions for all patriotic-minded individuals/movements’. It contains specific instructions on funding operations and avoiding suspicion from relatives, neighbours and friends. The document highlights that the preferred method is to attack in a violent and deceptive form, with limited force of one to two people, noting it is better to kill too many people, than not enough. The document also discusses in detail how to plan operations and prepare for attacks, and states ‘violence is the mother of change.’ The document contains discussion of different ‘operational phases’ in any given terrorist attack and an analysis of how to prioritise targets of an attack with an emphasis on the value of attacking political, media or cultural leaders. 100 The Myatt Book is titled “A Practical Guide to the Strategy and Tactics of Revolution.”. In 2021, David Myatt was listed as one of the world’s most dangerous extremists. The document describes four methods on how to conduct assassinations of individuals, terror bombing (including targets where civilian casualties are probable), sabotage of infrastructure (including roads, communication, airports, railways and the like), and terror campaigns directed at enemies. 101 The circumstances of possession are important and inform the risk that the material might have become available to someone else. There was a real risk of the documents becoming available to someone open to being radicalised, including to violence. The material was possessed by persons who held, or had held, leadership positions in white supremacist groups, the purpose of which was to attract members and radicalise them. 102 General deterrence had particular importance given the harm that offences of this type can cause. -- 27 of 28 -- [2024] SASCA 8 The Court 24 103 In the case of both applicants, personal deterrence was a particularly important consideration. As set out earlier, the interest of Mr Cromb in material of this type was long standing and both applicants had held roles within both the NSN and EAM. Both applicants continued to maintain the extreme views which led them to possess the material. 104 We do not overlook the matters emphasised by the applicants. But in the circumstances, it cannot be said that the sentences imposed, nor the failure to find good reason to suspend, were outside of a proper exercise of the sentencing Judge’s discretion. Conclusion 105 With respect to both applicants, we grant permission to appeal but dismiss the appeals. -- 28 of 28 --