By Paul Gregoire and Ugur Nedim
Written on the outside of two envelopes Christopher Hardy hand delivered to the Charlestown office of NSW Labor MP Jodie Harrison on 3 March 2017 was a message that read, “To the Minister, You are in TREASON, you will be hung until you are dead, No Mercy, No Prisoners, You are scum”.
Inside the envelopes, the now 49-year-old Newcastle jeweller had inserted printed material that suggested the Australian federal government is a corporation controlled by foreign companies, which are views consistent with the US born Sovereign Citizen Movement (SCM).
The US Justice Department classes SCM as “an extreme anti-government movement whose members believe the government has no authority over them”. And this has transpired into its adherents committing violent crimes over in the States, which have included murders.
NSW police executed a search warrant at Hardy’s premises in May 2017. Officers located prohibited weapons, including nun-chucks, torch batons, and an air gun. They also found questionable downloaded documents, including the blueprints to manufacture 3D printer plastic firearms.
Hardy pleaded guilty to several charges in the NSW Local Court, including one count of delivering documents threatening to kill, contrary to section 31 of the Crimes Act 1900 (NSW). This crime carries a maximum of 10 years prison time.
And a magistrate sentenced the offender on 21 February 2018, to an aggregate sentence of 16 months imprisonment, with non-parole set at 12 months.
NSW authorities subsequently conducted a second search of Hardy’s premises in late 2017. Files taken from his computer took time to analyse but resulted in several firearms charges being laid towards the end of 2018, which Hardy was later convicted of and then placed on a community order.
Hardy was granted bail on the fresh charges in January 2019 and released on an interim supervision order (ISO), under section 27 the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act), as the state was then requesting the offender be placed on an extended supervision order (ESO).
Passed in November 2017, the Act established a system whereby the state can request that a high risk terror offender, who poses an unacceptable risk of committing a serious terrorism offence, be placed on a post-sentence extended supervision or detention order for up to three years.
Supreme Court Justice Richard Button placed Hardy on a two year ESO in April 2019. And by that stage, the offender was disputing his guilt, despite the DNA evidence on the envelopes.
While in April this year, Justice Peter Johnson placed Hardy on a second ESO, with this current one expires after 18 months.
On 16 November, Hardy appealed the validity of his recently imposed ESO to the NSW Court of Appeal based on two grounds.
In handing down the decision, NSWCA Justice John Basten said it was necessary to consider some of the provisions of the Act prior to deliberating upon the grounds.
Section 20 of the Act permits the Supreme Court to impose an ESO on an eligible offender, who is a NSW convicted terrorism offender, underlying terrorism offender or a terrorism activity offender, and they pose “an unacceptable risk of committing a serious terrorism offence”.
An eligible offender is defined in section 7 of the Act, as being at least 18 years old and is serving or has served time for an indictable offence.
Justice Johnson found Hardy was a convicted NSW terrorism activity offender under subsection 10(1)(c)(i) of the Act, which sets out that this includes offenders who have been “advocating support for any terrorist act or violent extremism”.
His Honour determined that Hardy had advocated for violent extremism when delivering the threatening message to his local MP.
However, while a terrorist act is defined under section 100.1 of the Criminal Code (Cth), violent extremism has no statutory definition.
So, Hardy’s first ground was that Justice Johnson made an error in not defining violent extremism but went on to impose an ESO in relation to it. And further, it wasn’t possible he was advocating for such behaviour, as at the time of the offence, he had a diagnosed transient delusional disorder.
Justice Basten explained that Justice Button had found that Hardy had been making comments advocating violence towards politicians over social media for some time prior to the letter incident. And despite his mental state at the time it happened, he was still calling for violent extremism.
His Honour explained that a delusional state doesn’t prevent an individual forming the intent to commit a crime. And he added that Hardy also hung plastic sheets around his premises that year to prevent the onset of fungal spores, and whilst this may have been delusional, it was still intentional.
In terms of violent extremism being undefined, the justice explained that the Act conveys this to mean committed or threatened violence as part of a broader terror ideology, and Hardy’s SCM material did constitute this.
A further ground
The second ground of appeal related to Justice Johnson having made an error in terms of the test set out in subsection 20(d), which provides that the court must be satisfied to a “high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence”.
There were four parts to Hardy’s second ground, which involved failing to consider the double intention aspect of a “serious terrorism offence”, rejecting a psychiatrist’s testimony, as well as that of two experts, and improperly considering the offender’s failure to give evidence.
A terrorist act has a double intention. In the case of Hardy’s, this comprised of threatening one MP in order to intimidate the entire government.
Justice Basten pointed out that while Justice Johnson didn’t overtly consider the double intention of a potential “serious terrorism offence”, there was enough in his judgement to show he was aware of this aspect to the crime. And he’d even stated “double intention” in his findings.
The next part of the ground was related to his Honour having rejected a question put to psychiatrist Dr Andrew Ellis’ about whether he thought Hardy could form a double intention in a delusional state.
But Justice Basten found there was no substance to the claim that an error had occurred, or that double intention had been misconstrued.
In relation to the primary judge having rejected the evidence of two experts due to “significant concerns” about what Hardy had told them, Justice Basten found that the rejection of this evidence was not “unreasoned” but rather appropriate given the circumstances.
And on whether the primary judge was wrong to give consideration to Hardy’s failure to testify, Justice Basten set out the instances in which his Honour had raised the offender not having given evidence, and in terms of these citations, he found it was appropriate to make them.
“For the reasons set out above, each of the separate grounds of appeal must be rejected,” Justice Basten ruled on 22 December 2021. “The appeal must therefore be dismissed.”
NSWCA Justice Richard White agreed with Justice Basten and added extra reasons to support the decision. And Justice Lucy McCallum agreed with both their Honours findings.