Double Jeopardy in Sewell and Hersant’s Supreme Court Fight

Today the Supreme Court of Victoria heard an appeal lodged by the prosecution (Victoria Police) to what they claim was an “inadequate sentence” Thomas Sewell and Jacob Hersant received last year in the County Court.

The pair both part of the National Socialist Network (NSN) were sentenced by Judge Kellie Blair for what the media coined the “Nazi hiking attack”. They each were convicted of one charge of “Violent Disorder” which is a new and more extreme affray law.

Sewell received a 37-day prison sentence with time already served and Jacob Hersant received a 14-month corrections order with 200 hours of community service which has already been completed prior to the appeal hearing today.

In front of 3 Supreme Court judges the prosecutor struggled to describe exactly what he wanted in a new sentence. Sewell’s King’s Council described the appeal as “extraordinary”.

Prosecution appeals to the Supreme Court are very rare and most are based on major mistakes made on behalf of the sentencing judge, such as not taking into account a serious relevant prior criminal conviction or serious misconduct on behalf of the previous judge.

So on what grounds is the prosecution appealing? Well.. it doesn’t make sense, and likewise, the 3 judges were confused.

First, the prosecution argued Sewell’s sentence of 37 days already served is inadequate and should be 6 months. Pressed on this by the 3 judges that Sewell already spent 7 months in solidarity confinement he would still receive time served and no further punishment would be served the prosecution agreed.

The 3 judges also scolded the prosecution that the previous judge took into account that Sewell had spent 7 months in solitary confinement.

This appeal argument is basically a change on paper and has no new outcome for Sewell, so no more prison time and no further punishment as the prosecution is asking for prison time that has already been served.

The second argument is that the crime was not in the low serious range of the offence but one of the judges corrected the prosecution that it was and was even conceded by the previous prosecutor in the county court hearing.

The third argument was to implement an aggravated factor for the original charge due to masks being worn at the time of the offence. Sewell’s KC responded that it could not stand because not all were wearing masks including Sewell and Hersant.

The major argument by Sewell’s KC was this constituted double jeopardy under common law. Sewell and Hersant last year both pleaded guilty due to an indication hearing, an indication hearing is where the judge tells the defendants what their punishment would be if they choose to plead guilty.

It would be akin to buying a car for $20,000 and then a year later the seller changing his mind and demanding you pay $50,000 after purchase. It is unfair morally and legally.

There were a few other weak arguments by the prosecution regarding chances of reoffending but the main theme of the day was the prosecution tip-toeing around that they’re Nazis and the media reporting that the judge was fair to them at the last hearing and shouldn’t have been because Nazis are bad.

Law is law and politics is politics, you can’t punish politics with law and the prosecution is walking a tight pole with this appeal.

It is important to note that the Crown (Victoria Police) had to pay for Kings Councils and legal teams for both Sewell and Hersant’s defence, this whole appeal would have cost north of half a million dollars of taxpayer money, for what? So the state won’t lose face?

It’s highly likely this appeal will be dismissed, if not I can assure the reader that Sewell and Hersant will not spend another day in prison.

The 3 judges have reserved their judgment and we will report on the final decision when it’s handed down.