'Counter-productive' to send neo-Nazi back to jail over Victorian hiker attack, appeal court rules

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Victorian prosecutors have lost a bid to send two neo-Nazis back to jail over a violent attack on a group of hikers in a state park.

The Office of Public Prosecutions argued County Court Judge Kellie Blair was too lenient last year when she imposed a sentence which enabled Thomas Sewell and Jacob Hersant to walk free from court.

Sewell had already spent 210 days behind bars as he waited for a violent disorder charge and an unrelated assault charge to be brought before the Victorian courts. Hersant was in custody for three days.

Judge Blair sentenced Sewell and Hersant to time already served over the Cathedral Ranges State Park incident, which saw the pair join a large group of armed far-right nationalists and set upon six hikers, forcing the victims to flee.

Thomas Sewell and Jacob Hersant were part of a large group who attacked hikers in the Cathedral Range State Park in 2021.(Facebook: Parks Victoria)

Chief Crown prosecutor Brendan Kissane KC said the attack would have been "terrifying" and called it a "serious example of the offence of violent disorder".

But on Tuesday, Court of Appeal president Justice Karin Emerton said the prosecutors' appeal would be dismissed, rejecting claims Judge Blair's sentence was "manifestly inadequate" in Sewell's case.

"Not only did he serve a period of six months, but he also served that time in extremely harsh conditions," Justices Emerton, Maree Kennedy and Christopher Boyce wrote.

The appeal judges did, however, find that the County Court judge was too charitable towards Hersant, who was originally ordered to complete community work over a 14-month period.

Sewell's legal battles end while Hersant remains before the courts

The judges noted the disparity between the time each of the men had spent in prison over the attack.

"Mr Hersant's offending called for a custodial sentence and one of sufficient duration not only to punish him but, also, to send a message out into the community that offending of this nature will not be tolerated and will be met with condign punishment," they wrote.

Despite that, the judges said there was also room for discretion in Hersant's case, and ruled it would be "counter-productive" for him to be sent back to jail.

Jacob Hersant has completed 200 hours of community service ordered by the court. (AAP Image: James Ross)

They noted Hersant was a young offender who had already completed the 200 hours of required community work.

In their written judgment, the Court of Appeal judges were scathing of the actions of Sewell and Hersant, who were figureheads of the European Australian Movement (EAM) and National Socialist Network (NSN) at the time of the attack.

"It is simply intolerable in an open, civil society like ours that a group such as the EAM/NSN groups might seek to terrorise innocent members of the community by means of gratuitous, cowardly and entirely unprovoked pack-violence as occurred in this case," the judges wrote.

Thomas Sewell arriving at the Victorian Court of Appeal on Tuesday. (AAP Image: James Ross)

While Sewell's legal battles are now over, Hersant remains before the courts in a separate case, with Victoria Police alleging he made an illegal Nazi salute minutes after leaving the County Court last year.

Hersant, who was the first Victorian to be charged with the offence, is fighting the charge and faces potential jail time if found guilty.

Posted 23 Apr 202423 Apr 2024Tue 23 Apr 2024 at 2:49am, updated 23 Apr 202423 Apr 2024Tue 23 Apr 2024 at 6:05am