By Tara Cosoleto in Melbourne

A neo-Nazi facing jail time for performing the Nazi salute in public has been allowed to walk free from court before his sentence. 

Jacob Hersant, 25, went into Melbourne Magistrates Court on Wednesday afternoon with a bag packed for prison after he became the first Victorian convicted of the offence.

Magistrate Brett Sonnet had earlier indicated Hersant would be immediately remanded in custody after deciding jail was the only appropriate sentence.

But Mr Sonnet changed his mind in the afternoon after hearing defence submissions, allowing Hersant’s summons to continue until his sentencing hearing in November.

“My intention is to jail him – nothing changes that fact,” the magistrate said.

Hersant on Tuesday became the first Victorian found guilty of intentionally performing the Nazi salute in public.

Video played in court showed Hersant raising his arm to salute in front of journalists and camera crews outside the County Court on October 27, 2023 – six days after Victorian laws banning the gesture came into effect.

He was then captured saying “nearly did it – it’s illegal now” and “Australia for the white man, heil Hitler”, before walking away.

Hersant’s barrister Tim Smartt told the court his client was a far better person than the behaviour demonstrated in the video.

Hersant was a family man and full-time carer of his two-year-old son while he was unemployed, Mr Smartt said.

The 25-year-old also won a poetry competition in the United States, which Mr Smartt said was not connected to Nazi ideology.

The barrister submitted Hersant was a young person who was on track towards rehabilitation, and the offending was at the lower end of seriousness so a $1500 fine was within range.

But prosecutor Daniel Gurvich KC pushed for jail time, saying Hersant’s salute and comments outside court had vilified minority groups.

“It has no place in Victoria,” the prosecutor said.

Mr Gurvich said Hersant was “calculated” and wanted to “achieve maximum impact” when he performed the Nazi gesture in front of waiting media in October 2023.

The prosecutor also noted comments Hersant made to journalists on Tuesday, when he stated “loudly and clearly” he would continue to perform the salute away from the police.

Hersant’s prospects of rehabilitation were poor to non-existent, Mr Gurvich said.

Mr Sonnet agreed prison was the only appropriate sentence.

The magistrate noted there had been no guilty plea, or signs of remorse, and Hersant had relevant prior convictions.

But Mr Sonnet made clear he was punishing Hersant for breaking the law rather than his extremist views.

“He’s entitled to hold those views despite how unpalatable and offensive they are to others,” the magistrate said.

Hersant was quiet in court as he sat next to his mother and fellow neo-Nazi Thomas Sewell, who carried a copy of Friedrich Nietzsche’s On the Genealogy of Morals, a book popular with the far-right.

Going into court in the afternoon, Hersant said he would appeal the “anti-white and tyrannical laws” and he was prepared to go to jail for his beliefs.

But as he was leaving, he told reporters he would only make a comment when he appeals.

Sewell also clashed with journalists, claiming he had the right to make political gestures and the magistrate’s decision would be challenged in a higher court.

Hersant will be sentenced on November 8.