DPP v Thomas Sewell & Jacob Hersant [2024] VSCA 70

Summary of judgment

DPP v Thomas Sewell; Jacob Hersant

23 April 2024

Today, the Court of Appeal (Emerton P, Kennedy and Boyce JJA) dismissed two appeals by the Director of Public Prosecutions (‘DPP’) against the sentences imposed on the respondents by a judge in the County Court of Victoria on 27 October 2023.

On 1 August 2023, following a sentence indication, Thomas Sewell and Jacob Hersant each pleaded guilty to a charge of violent disorder. On 26 September 2023, Sewell also pleaded guilty to committing an indictable offence whilst on bail.

The offending concerned an attack by about 10–15 males (which included Sewell and Hersant) on six hikers at the Cathedral Ranges State Park. The men were members of the National Socialist Network (‘NSN’) and the European Australian Movement (‘EAM’). At the relevant time, Hersant was the leader of the NSN, and Sewell was the leader of the EAM. At the time of the attack, most of the men wore face coverings and some had knives (although Sewell and Hersant did not). The violent conduct of Hersant, Sewell and the group towards the hikers caused damage to the hikers’ vehicle and a minor injury to one of the hiker’s fingers.

Sewell was sentenced to 1 month and 7 days’ imprisonment (reckoned as time already served). In doing so, the judge had regard to the fact that Sewell had served more than six months on remand in very difficult conditions. Hersant was sentenced to 3 days’ imprisonment (reckoned as time already served) with a community correction order (‘CCO’) of 14 months.

The DPP appealed against the sentences, principally on the basis that they were manifestly inadequate, which was said to arise, in large part, from the judge giving insufficient weight to the seriousness of the offending.

The Court of Appeal considered it was open for the judge to find that, although serious, the offending was at the ‘lower end of seriousness for offending of this type’. However, even offending at the ‘lower end of seriousness’ would ordinarily warrant substantial punishment.

In respect of Sewell, the Court of Appeal ultimately held that his sentence was not manifestly inadequate. The Court of Appeal was not satisfied that his sentence is wholly outside the range when time served is taken into account. Consistent with the concessions of the DPP, the judge was entitled to treat the more than 6 months’ imprisonment he had served on remand in solitary confinement as part of the punishment for his offending.

In respect of Hersant, the Court of Appeal held that his sentence was manifestly inadequate. The Court of Appeal did not consider that Hersant’s distinguishing features were such that it would be reasonable for him to serve only 3 days’ imprisonment with a CCO of 14 months, while his co-offender served 6 months in solitary confinement. However, ultimately, the Court of Appeal determined to exercise its residual discretion not to interfere with Hersant’s sentence. In doing so, it had regard to a number of features that weigh in favour of the exercise of the residual discretion. In particular, the Court of Appeal found that it was counter-productive to return Hersant to prison now in circumstances where he was a young offender who had completed all 200 hours of work imposed under the CCO.
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NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment on AustLII.