A self-described neo-Nazi has been spared jail for the time being for performing the Nazi salute in public and was 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 Australian 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 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.

Jacob Hersant gave the salute and praised Nazi leader Adolf Hitler in front of news media cameras outside the Victoria County Court on Oct. 27, 2023, after he had appeared on an unrelated charge six days after the Victoria state government had made the salute illegal.

The Federal Parliament passed legislation in December that outlawed nationwide performing the Nazi salute in public or to publicly display, or trade in, Nazi hate symbols.

A Melbourne magistrate found Hersant guilty, dismissing his defence lawyers’ arguments that the gesture wasn’t a salute and that the ban unconstitutionally infringed upon Hersant’s implied freedom of political communication.

Hersant is scheduled to be sentenced in November.