21 April 2021

Sovereign Citizens

In State of New South Wales v Hardy [2021] NSWSC 323 Harrison J has considered orders against Christopher Hardy pursuant to the Terrorism (High Risk) Offenders Act 2017 (NSW), of interest in relation to sovereign citizen studies and 3D printing. 

The judgment states 

Mr Hardy is 48 years old with no significant criminal history prior to his commission of several offences in March and May 2017 that gave rise to the original Extended Supervision Order. 

On 3 March 2017 staff arrived at the Charlestown parliamentary office of local (opposition) member for NSW State Parliament Ms Jodie Harrison. On opening the door, staff located two envelopes situated on the office entrance floor. Both envelopes were addressed as follows: "To the Minister You are in TREASON, you will be hung [sic] until you are dead No Mercy, No Prisoners You are scum." 

Inside each of the envelopes was material printed from the internet website www.peoplesmandate.iinet.net.au. This material included writings to the effect that the Commonwealth of Australia is a corporation, controlled by foreign corporations, a doctrine consistent with the beliefs of the Sovereign Citizen Movement. 

A few months later, on 2 May 2017, at the request of Mr Hardy's landlord, police conducted a welfare check on him at his business premises. This search occurred in the context of a dispute between Mr Hardy and his landlord about mould, an issue with which Mr Hardy had become and remains obsessively fixated. In the course of that welfare check, and later warrant search and seizure action, some prohibited weapons were located at Mr Hardy’s business premises including nun-chucks, a slingshot with ball bearings, a replica pistol, a large number of large decorative knives, long torches/batons and a 3D printer. There was in addition voluminous print and electronic material evincing anti-government sentiment (indicating a strong attachment to the Sovereign Citizen Movement) and the infliction of injury and death in military contexts, including manuals on how to make booby-traps and explosives. 

Fingerprints on the envelopes located in March 2017 were subsequently linked to Mr Hardy. Mr Hardy was arrested, charged with the index offending (possessing an unregistered firearm; possessing prohibited weapons without a permit, and sending the document threatening death to Ms Harrison MP), and released on bail. In September 2017, after failing to appear at Court, Mr Hardy's bail was revoked. 

In December 2017, while in custody awaiting the charges for the index offending to be finalised, Mr Hardy was served by NSW Police with Firearms and Weapons Prohibition Orders. Police attached to the Fixated Persons Investigations Unit also searched his residence where a commercial grade pressure cooker and a USB were observed. Later inquiries suggest the pressure cooker had been purchased by Mr Hardy in November 2016. In February 2017 he had accessed a video on YouTube entitled "See the difference between pipe bombs and pressure cooker bombs". Material seized on 3 May 2017 included printed instructions relating to creating an explosive device using a pressure cooker. 

In February 2018, Mr Hardy pleaded guilty to offences relating to the threatening letter and the weapons and firearm possession, but later denied responsibility for sending the letter, a denial that he maintains. He received sentences totalling an aggregate of 16 months imprisonment, commencing on 19 September 2017, with a total non-parole period of 12 months. The day before Mr Hardy was due for release on parole on 19 September 2018, his statutory parole order was revoked by the State Parole Authority. 

In October 2018 police executed a search warrant at Mr Hardy's residence. A USB and the 3D printer previously seen at Mr Hardy's business premises were seized. The USB contained 411 digital blueprints for the 3D printing and manufacture of 12 firearms and replica firearms, parts or non-firing ammunition. The blueprint material had been put onto the USB before Mr Hardy's initial arrest in May 2017 and corresponded with the contents of his desktop computer seized from his business premises in May 2017. 

Expert examination of the 3D printer concluded it could produce physical parts from digital blueprints, although the device did not appear to have been used for any significant duration or to create any significant number of objects. 

On a different 3D printer, but utilising the same principles of technology as the 3D printer seized from Mr Hardy's premises, police produced physical models from a selection of digital blueprints taken from the USB. 

At a preliminary hearing for the original Extended Supervision Order application in December 2018, and again at the final hearing in April 2019, Mr Hardy was assessed by Button J as an eligible offender under the Act on the basis of the threatening envelopes sent by him in March 2017. His Honour considered that his conduct amounted to a statement advocating support for violent extremism, thus rendering him a "NSW terrorism activity offender" pursuant to s 10 of the Act. 

On his release from custody on 31 January 2019, Mr Hardy was subject to an Interim Supervision Order following the completion of his original sentence on 18 January 2019 and his release on bail for the blueprint offences. His Honour imposed a two-year Extended Supervision Order with comprehensive conditions, commencing on 29 April 2019. 

After multiple listings of the 2017 blueprint offences matter for contested hearing, Mr Hardy ultimately pleaded guilty in December 2020 to a representative count for possessing all 411 blueprints relating to 12 firearms and replica firearms. For the 2017 blueprint offence Mr Hardy is now serving a further sentence of 18 months imprisonment, to be served by way of Intensive Corrections Order, which incorporates a community work order. The sentence was imposed on 11 December 2020 and will expire on 10 June 2022. 

Mr Hardy also remains subject to the Firearms Prohibition Order and Weapons Prohibition Order made on 22 November 2017. These orders have no time limit. In addition to prohibiting him from acquiring, possessing or using a firearm, prohibited weapon or firearm part or ammunition, these orders also provide for the search and seizure of him and premises and vehicles under his control, occupation or management.

In Clarke v Scanlon [2021] VSC 19 Croucher J states 

 On 10 January 2021, Ms Clarke was arrested and charged with eleven offences, including recklessly causing injury to, and threatening to kill, her partner’s father and recklessly causing injury to a police officer. 

In short, it is alleged that Ms Clarke, aged 38, assaulted, and threatened to kill, Mark Harris, aged 61. This occurred at Mr Harris’s property in The Basin, where his wife lived with their son Christopher Harris (who is Ms Clarke’s partner) and Ms Clarke. Mr Harris’s wife’s elderly parents lived there too. It is also alleged that, when police arrived some time later, Ms Clarke assaulted Leading Senior Constable Tanya Lavin by kicking her to the knee during the course of an arrest. Indeed, so out of control was Ms Clarke’s behaviour that police considered it necessary to tackle her to the ground and to administer capsicum spray to quell her. 

When in police custody later that day, Ms Clarke was uncommunicative and, it seems, in no fit state to apply for bail. Accordingly, no such application was made at that time. The next day, however, Ms Clarke did apply for bail, but her application was refused by the magistrate. As a result, she has been in custody for the last seventeen days. 

In order to be granted bail, Ms Clarke must establish a compelling reason justifying bail. Sensibly, however, her application in this Court is not opposed by the prosecution. Nor, given the conditions of bail proposed, do the prosecution submit that, if bailed, there is an unacceptable risk that Ms Clarke would engage in any of the behaviours proscribed in the Bail Act 1977 (Vic). 

Ms Clarke’s behaviour and utterances at and around the time of the alleged offending and to mental health practitioners since give rise to serious concerns about her mental health. In my view, she should not be in custody any longer. Instead, she should be released on bail so that she may be examined more closely by mental health authorities pursuant to an inpatient assessment order (“IAO”) under the Mental Health Act 2014 (Vic) (“the MHA”) and, if considered necessary, treated as well. As will be seen, such steps have been put in place in the event of her release. 

Further, Ms Clarke, who has no criminal history, upon her discharge from the strictures of an IAO, will be able to live with her partner at his property in a country town several hours’ travel from Mr Harris’s property. Happily, her partner is able to work from home, take her to any mental health or other appointments and care for her generally. 

Against that background, I am satisfied that several factors, in combination, establish compelling reasons why bail is justified. Chief among them are: (a) Ms Clarke’s parlous mental health at the time of the alleged offending; (b) that she is now subject to an IAO which will result in her being transported by ambulance to a designated mental health service for assessment; (c) that it is extremely unlikely that she would be imprisoned, if indeed she were ever convicted of any of the offences charged; and (d) that she has in place satisfactory arrangements for her care and accommodation after discharge from the IAO. 

Further, given the surrounding circumstances, including the conditions of bail agreed by the parties, I am not satisfied that there is an unacceptable risk that Ms Clarke would engage in any of the behaviours proscribed by s 4E(1) of the Bail Act. 

Accordingly, bail should be granted. 

My more detailed and settled reasons for these conclusions follow. 

Alleged offending 

I turn first to a summary of the alleged offending. 

On 10 January 2021, at 11:40 a.m., Mr Harris attended his property at The Basin. He was there to do some maintenance on the house in order to prepare it for sale and to ask his son Christopher Harris, who had been living there with Ms Clarke for the past two years or so, to move their belongings for the purposes of the sale. 

A few minutes into the conversation, Ms Clarke burst into the room and yelled, “You have to do this legally.” She then struck Mr Harris (Snr) in the mouth with her left fist, causing his lip to split and bleed. Christopher Harris restrained her, but she also yelled at his father, multiple times, “I’ll kill you.” Mr Harris (Snr) left and reported the matter to local police. 

At 1:20 p.m., LSC Lavin and Constable Riley McGibbony attended the address for the purposes of arresting Ms Clarke. Mr Harris (Snr) met the police in the driveway and let them inside the house. They found Ms Clarke and Christopher Harris upstairs. LSC Lavin informed Ms Clarke that she was under arrest for recklessly causing injury to Mr Harris (Snr). Ms Clarke lunged towards LSC Lavin and pushed her out of the way. LSC Lavin then grabbed Ms Clarke to prevent her from falling down a flight of stairs. At the same time, Constable McGibbony deployed OC spray foam to the side of Ms Clarke’s face. 

Ms Clarke broke free and ran down the stairs towards the front door. Constable McGibbony gave chase and tackled her to the ground. The two police then tried to gain control of Ms Clarke, who was violently kicking out at both officers. During the arrest, Ms Clarke kicked LSC Lavin to the knee, causing bruising and pain. 

Once placed in handcuffs, Ms Clarke was given aftercare in respect of the OC foam. She was then taken to Knox Police Station. No formal interview was conducted as Ms Clarke was not considered fit to participate. 

Previous bail application 

As indicated earlier, when in police custody at the time of her arrest, Ms Clarke was uncommunicative and did not apply for bail, as she was in no fit state to do so. The next day, however, an application was made, but was refused by a magistrate. The court extract indicates that the magistrate was not satisfied that compelling reasons had been shown and was satisfied that there was an unacceptable risk that, if bailed, Ms Clarke would commit an offence or endanger the safety or welfare of any person. 

Mental health and other concerns and arrangements in place to address those concerns 

Concerns expressed in police summary 

In the police summary annexed to the affidavit filed in this Court on behalf of the respondent, it is alleged that Ms Clarke has said, among other things, that she is a sovereign citizen and that she does not acknowledge Victorian law, Victoria Police’s authority or the authority of the Victoria’s courts as Jesus is her only master. 

Interim FVO 

On the day of her arrest, an interim family violence intervention order was made against Ms Clarke and in favour of Mr Harris. That order has not been served yet. It contains standard conditions, including a prohibition on her being within five metres of Mr Harris or within 200 metres of his premises at The Basin. 

Previous IAO and mental health report 

In a report before this Court compiled by Constable Daniel Zerella, who describes himself as “the corroborator for this matter”, it is noted that Barrie Janson, who is a senior nurse with the Mental Health Advice and Response Service (“MHARS”) at Forensicare, made an IAO on 11 January 2021, the effect of which was that Ms Clarke would be transported to hospital, if she were released on bail that day. That IAO has now expired. 

Mr Janson also completed a mental health report on 11 January, which is before the Court. In the report, Mr Jason noted that the custodial staff reported bizarre behaviour and comments by Ms Clarke. He also said that Ms Clarke: (a) appeared guarded, hyper-vigilant and unwilling to be interviewed but started listening and engaging once he explained his role; (b) expressed religious and delusional themes; (c) said that she has a history as a survivalist and “prepper”; (d) said God has been communicating with her partner and her in their dreams, and that God had told them that they had to live at the home of her “in-laws”; (e) said that “end times” are coming and that there will be war and famine soon; and (f) presented as psychotic and delusional, with poor judgment and no insight. 

Mr Janson also observed that Ms Clarke was vulnerable, was not being treated (psychiatrically) and appeared to be resistant to such treatment.

In Busselton (WA) Magistrates Court  18-year-old sovereign citizen Phoebe Lee Bennett  has been convicted for speeding, having refused to confirm her name. The ABC reports that Bennett repeatedly objected during the proceedings and thanked secessionist group New Westralia.

Bennett made statements about "rebutting the presumptions of the court" but refused to confirm her name. 

Magistrate Linda Keane warned Ms Bennett that she would be deemed "absent" if she did not comply and that the matter could proceed without her. 

"I don't want to deny you speaking in court, Ms Bennett — if that is indeed your name," Magistrate Keane said. "But you have to confirm your identity." 

Phoebe Bennett accused the court of refusing to "accept the evidence". 

Bennett repeatedly said "we object" as prosecutor Karl Rep read out the allegation that she had been clocked speeding in her Holden Astra at 127 kilometres per hour in a 110kph zone near Busselton last year. 

Ms Bennett then attempted to read a statement about international conventions, but was ushered out of the court. "Let the record show that you will not accept evidence," Ms Bennett said. 

Phoebe Bennett says her appearance may mark the start of greater "accountability" in places like Busselton Magistrate's Court. Outside court Ms Bennett read a prepared statement in which she thanked her "attorney", apparently a citizen of "New Westralia", for his assistance. 

"I wish to thank the court for their understanding," Ms Bennett said. "I also wish to thank my attorney William Atherton from New Westralia for his guidance and support.

It is unclear whether Atherton's practitioner status was granted by the New Westralia theocratic secessionists on an Australian government.