Magistrate makes example of trio over Nazi salutes
A magistrate has stressed the need for general deterrence in sentencing three men who performed Nazi salutes outside the Sydney Jewish Museum.
Anthony Mitchel, Ryan Marshall and Daniel Muston leaving the Downing Centre Local Court in Sydney, Tuesday, October 31, 2023. (AAP Image/Dean Lewins)
Three men have been hit with hefty fines after being found guilty under new laws banning the display of Nazi symbols, despite claiming what they did was a joke.
Daniel Muston, 41, Ryan Peter Marshall, 31, and Anthony Raymond Mitchell, 32, were charged after performing Nazi salutes outside the Sydney Jewish Museum in inner-city Darlinghurst on October 13, 2023.
They each pleaded not guilty to one count of knowingly displaying a Nazi symbol in public without a reasonable excuse and backup charges of offensive conduct.
The men had claimed the acts were a joke, with one citing a skit by British comedian Ricky Gervais in which he gave the salute.
But Magistrate Jennifer Atkinson shot down a defence of “artistic performance” claimed by one of the men, saying she had to implement the laws as they were written by parliament.
“He was not doing a comedy routine,” she said.
“He got caught up in the behaviour of the others and did what he did.”
Ms Atkinson on Thursday found each of the men guilty, saying although they might have been joking or been caught up in the moment, their actions were against the law.
“This is not a trivial offence,” she said, adding that if she had found their actions were planned she would have considered their crimes much more serious.
Ms Atkinson said she accepted each of the men had learned their lessons, including attending the museum to learn about the history of the holocaust but maintained there was a strong need to deter other offenders.
The three construction workers were on their lunch break at the time and had not deliberately intended to pass by the museum, Downing Centre Local Court was told previously.
As the men were walking back to their van, Marshall and Muston were captured on footage laughing, raising their right hands and goose-stepping.
Mitchell also later performed the salute, which the court heard was even more fleeting than the other two men.
The gestures were witnessed on CCTV by a security guard at the museum, who contacted police.
As the instigator of the salutes, Marshall was fined $1500, while Muston was fined $1000.
Mitchell was fined $500 for his offence, which was deemed the least serious.
The case was another test for laws prohibiting the display of Nazi symbols introduced by the NSW parliament in 2022.
The offence carries a maximum penalty of 12 months’ jail, an $11,000 fine or both.
Lawyers for the three men argued the salute did not fall under the legislation, which they argued only extended to symbols such as the swastika and Iron Cross.
Ms Atkinson noted on Thursday there were no previously published decisions to help inform her ruling due to the laws being relatively new.
But she found the wording of the legislation allowed for “acts or gestures” to be included.
“Interestingly, the bill does not define the term ‘Nazi salute’,” Ms Atkinson said.
However, what constituted the salute was common knowledge and was easily discernible including by viewing footage from the 1930s and 1940s, the magistrate said.
“They are immediately recognisable as being associated with that regime,” she said.
The Nazi regime was characterised by ideologies of “fascism, racism and anti-Semitism” which had been “shamefully” adopted by some neo-Nazi groups, Ms Atkinson added.
Police prosecutor David Langton earlier said it was not in dispute the salutes were performed as a joke, but he pointed out the difference between carrying out the act at a comedy show and on a public street.
In June, three other men were convicted under the same laws for performing Nazi salutes during a soccer match at Parramatta’s CommBank Stadium in October 2022.
Those men, who were each fined $500, have since appealed their convictions.
By: Duncan Murray/AAP
