District Court New South Wales Medium Neutral Citation: Antaw v R; Kitson v R; Lee v R (No 2) [2021] NSWDC 821 Hearing dates: 1 and 5 March 2021 Date of orders: 26 March 2021 Decision date: 26 March 2021 Jurisdiction: Criminal Before: P Taylor SC DCJ Decision: In respect of Mr Antaw and Ms Kitson each: (1) The sentence appeal is upheld. (2) The offence is found proved, but pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999, without proceeding to conviction, the charge is dismissed. In respect of Ms Lee: (1) I refuse the s 10 application. (2) The sentence appeal is dismissed. (3) I convict Ms Lee of the offence of failing without reasonable excuse to follow a police direction and impose a fine of $150. Catchwords: CRIME — appeal and review — appeal from Local Court to District Court — by person sentenced against sentence – refuse/fail to comply with direction – s 10 – fine – whether trivial – whether serious – relevance of antecedents Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 3A, s 10, s 17 Law Enforcement (Powers and Responsibilities) Act 2002, s 199 Cases Cited: Antaw v R; Kitson v R; Lee v R [2021] NSWDC 820 Chin v Ryde City Council [2004] NSWCCA 167 David Morse (Office of State Revenue) v Chan and Anor [2010] NSWSC 1290 Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 R v Ingrassia (1997) 41 NSWLR 447 R v Mauger [2012] NSWCCA 51 R v Paris [2001] NSWCCA 83 R v Piccin (No 2) [2001] NSWCCA 323 Regina v Van Nam Nguyen [2002] NSWCCA 183 Walden v Hensler (1987) 163 CLR 561 Texts Cited: Sentencing Bench Book (Judicial Commission of New South Wales) Category: Sentence Parties: Proceedings 2020/00003554 Roy Edmond Antaw (appellant) Regina (respondent) Proceedings 2019/00406099 Felicity Kitson (appellant) Regina (respondent) Proceedings 2020/00000868 Fiona Michele Lee (appellant) Regina (respondent) Representation: Counsel: Mr S Dayeian (Roy Edmond Antaw) Mr D Grippi (Felicity Kitson and Fiona Michele Lee) Solicitors: Environmental Defenders Office (appellants) Office of the Director of Public Prosecutions NSW (respondent) File Number(s): 2020/00003554; 2019/00406099; 2020/00000868 Publication restriction: None Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 28 August 2020 Before: Magistrate Kennedy File Number(s): 2020/00003554; 2019/00406099; 2020/00000868 Judgment 1. Roy Antaw, Felicity Kitson and Fiona Lee each appealed against a conviction for the offence of refusing to follow a police direction and the sentence of a $150 fine imposed by the Local Court. They were each found guilty on the conviction appeals, so those appeals were dismissed. They maintain their appeals against sentence. The circumstances of the offences were set out in my earlier judgment on the conviction appeals. [1] 2. Each of Mr Antaw, Ms Kitson and Ms Lee seek an order under s 10 of the Crimes (Sentencing Procedure) Act 1999. The Crown expressly disclaimed a desire to be heard in respect of such an order. 3. Section 10 allows a court to find a person guilty but, without proceeding to conviction, order that the relevant charge be dismissed, or order that the relevant charge be discharged either under a conditional release order or on condition that they participate in an intervention program. 4. Principally, the three appellants seek an order that the charges be dismissed. 5. An order under s 10 requires the Court to have regard to the person's character, antecedents, age, health and mental condition, the trivial nature of the offence, the extenuating circumstances in which the offence was committed and any other matter the Court thinks proper to consider. 6. Each of the appellants was found guilty of the offence of refusing, without reasonable excuse, to comply with a police direction to move off a roadway under s 199 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). The maximum penalty is two penalty units, which currently equates to a maximum fine of $220. [2] 7. In each case, the appellants were mature adults. No issue of health or mental condition was raised. I will return to the matters of character and antecedents. 8. The purposes of imposing a sentence are listed in s 3A of the Crimes (Sentencing Procedure) Act and include adequate punishment, general and specific deterrence, protection of the community, rehabilitation of the offender, accountability, denunciation and recognition of the harm. 9. The principal determinant of a sentence is the level of objective criminality of the offence. The circumstance that an offence under s 199 carries a maximum penalty of a fine of $220 indicates a low level of criminality. This is a relevant feature, but not determinative in judging whether the offence is of a trivial nature, a matter to be considered under s 10. Triviality: "must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed. It was erroneous to ascertain the triviality of the offence by reference simply to the statutory provision which prescribes the maximum penalty." [3] 1. While a failure to abide by a lawful police direction might in some circumstances be an offence of a trivial nature, a refusal to do so is less likely to be trivial. Here, with each offender, the refusal did not persist for any significant period of time. The extent of persistence in the refusal appears to be a relevant matter for sentence and in assessing the seriousness of the offence since some level of persistence is required to constitute the offence under s 199(2) of LEPRA. Further, it is "not necessary to the application of s 10 that the offence be characterised as trivial". [4] 2. I am not persuaded that the conscious refusal to comply with a police direction to move off a roadway so as to cease obstructing traffic is a trivial offence in the circumstances that attach to the offences by the appellants. While not trivial, the offence could also not fairly be described as serious. The appellants were arrested shortly after their failure to comply with the direction and nearly immediately after their oral refusal to comply. At that point, the offence ended. 3. Subject to one matter raised by Ms Lee, there were no extenuating circumstances raised by any of the appellants. 4. In Hoffenberg v The District Court of New South Wales, [5] McClellan CJ at CL described the task of applying s 10 as a "deliberative process". [6] Excessive or inappropriate use of s 10 orders can undermine confidence in the administration of justice. The section provides a useful safety valve for ensuring that justice can be served in circumstances were, despite a breach of the law, there are such extenuating circumstances or the matter is so trivial that punishment does not seem appropriate. [7] Sometimes the legal and social consequences of a recorded conviction outweigh the purposes for the penalty such as general deterrence and denunciation. [8] 5. The circumstance that the offence is the first offence of the offender is relevant. With less serious offences, the legislature and the community may be willing to provide a second chance to an offender to maintain a reputation of good character. [9] 6. The absence of any remorse or contrition may also be relevant to the application of s 10. The offenders are not to be punished for pleading not guilty, or for maintaining the appeal, but they are not entitled to the leniency that a plea of guilty might warrant. Nor in these cases was there any other evidence of remorse or contrition. 7. It is also relevant that the level of obstruction to vehicles was not great. The section of the street where the appellants were located was relatively quiet to traffic, being a cul-de-sac. As indicated in my earlier judgment on the appeal against conviction, Mr Antaw and Ms Kitson were standing on the roadway, Ms Lee was seated in a chair, and their presence together with several other persons, tents and other objects operated to block the roadway to traffic. 8. I also recognise that public involvement in lawful assemblies is not only permissible, but a valuable and appropriate means of expressing community sentiment, and is, as indicated in my earlier decision on the conviction appeal, protected from being an offence against the law in certain respects. However, once the lawfulness of the public assembly has ceased, neither involvement in it then, nor involvement in the prior lawful assembly, serves as a mitigating element in a failure to follow a lawful police direction. 9. I referred earlier to the issue of the appellants' character and any criminal antecedents. I have read the references provided. Mr Antaw, 56 years old, and Ms Kitson, 43 years old, are both mature adults with no criminal history. I accept that they are of good character. 10. Although I do not accept that the offence is trivial, it is of a lesser seriousness, and in the case of Mr Antaw and Ms Kitson, it is a first offence. I am persuaded that these matters, despite the absence of evidence of contrition, warrant an order under s 10 in their cases. 11. Accordingly, in respect of Mr Antaw and Ms Kitson each: 1. The sentence appeal is upheld. 2. The offence is found proved, but pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999, without proceeding to conviction, the charge is dismissed. 1. Ms Lee is in a slightly different category. She is likewise a mature adult now 39 years old. However, she has a fine in 2010 for a previous offence of entering enclosed land without lawful excuse committed in 2009. She was granted a s 10 order for wilfully preventing the free passage of a person, vehicle or vessel in March 2020 in respect of an offence in October 2019. [10] 2. The material tendered on behalf of Ms Lee indicates that she is an involved and valuable member of the community, who is said to be "passionate about environmental issues such as climate change", [11] a matter relevant to her involvement in the public assembly that preceded the events in the present offence. Her activism may have been motivated in part by the unfortunate, traumatic and costly circumstance that Ms Lee lost her home in the bushfires during the 2019/2020 summer, which likely far outweighed the substantial public assistance she received from the bushfire appeal fund. However, despite her valued involvement in the community, the circumstance is that this is not a first offence, and she evidenced no regret about her refusal to follow a reasonable police direction. Her personal circumstances that motivated her lawful public protest are not, in my view, an extenuating factor for her subsequently to refuse to follow a lawful police direction in relation to obstructing the roadway. 3. In the case of Ms Lee: 1. I refuse the s 10 application. 2. The sentence appeal is dismissed. 3. I convict Ms Lee of the offence of failing without reasonable excuse to follow a police direction and impose a fine of $150. ********** Endnotes 1. Antaw v R; Kitson v R; Lee v R [2021] NSWDC 820. 2. Crimes (Sentencing Procedure) Act 1999, s 17. 3. Walden v Hensler (1987) 163 CLR 561 at 577. 4. R v Paris [2001] NSWCCA 83 at [42], Chin v Ryde City Council [2004] NSWCCA 167 at [38], R v Piccin (No 2) [2001] NSWCCA 323 at [22], David Morse (Office of State Revenue) v Chan and Anor [2010] NSWSC 1290 at [65]. 5. [2010] NSWCA 142. 6. At [29]. 7. Judicial Commission of New South Wales, Sentencing Bench Book at [5-020]. 8. R v Mauger [2012] NSWCCA 51 at [41], R v Ingrassia (1997) 41 NSWLR 447 at 449. 9. Regina v Van Nam Nguyen [2002] NSWCCA 183 at [50]. 10. Exhibit L2, p 2. 11. Exhibit L3, 27/1/20. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 October 2022