Kershaw v R [2024] NSWCCA 27

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kershaw v R [2024] NSWCCA 27 Hearing dates: 12 February 2024 Decision date: 01 March 2024 Before: Leeming JA at [1]; Wright J at [129]; Wilson J at [130]. Decision: 1. Grant leave to appeal on grounds 1, 2, 4, 5 and 6, and refuse leave to appeal on ground 3. 2. Appeal against conviction (grounds 1 and 2) dismissed. 3. Appeal against sentence allowed. 4. Quash the sentence imposed by the District Court on 27 October 2022, and in lieu thereof, sentence the appellant to an aggregate sentence of 5½ years imprisonment, with a non-parole period of 3½ years, commencing 17 October 2021 and expiring 16 April 2025, with the remainder of the term commencing 17 April 2025 and expiring 16 April 2027. Catchwords: CRIME – appeal against conviction – resisting officers executing duty – appellant acquitted of charges of resisting arrest by first two officers at the scene because arrest held to be unlawful – appellant also charged with counts of resisting officers executing duty – charges based on resistance to third and fourth officers who arrived at scene later and saw appellant struggling with first and second officers – appellant pleaded guilty – whether appellant should be permitted to withdraw his pleas – whether unlawfulness of arrest by first two officers impacted upon charges based on resistance to third and fourth officers – alternatively, whether appellant entitled to set aside one of the convictions because both were based on identical conduct – significance of absence of findings by primary judge – appeal against conviction dismissed CRIME – appeal against sentence – whether finding that arrest was invalid relevant to sentencing – whether sentencing judge failed to have regard to evidence of appellant's cognitive deficits – whether sentencing judge failed to have regard to aspects of appellant's subjective case – appeal against sentence allowed and appellant resentenced Legislation Cited: Crimes Act 1900 (NSW), ss 58, 59, 60, 61, 195 Crimes Act 1958 (Vic), s 40 Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 53A Criminal Appeal Act 1912 (NSW), ss 5, 5AA, 5AD, 6 Criminal Procedure Act 1986 (NSW), ss 132, 133, 166, Div 7 of Pt 3 of Ch 3 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 202 Licensing Act 1932 (SA), s 209 Offences against the Person Act 1861 (24 & 25 Vict c 100), s 38 Police Regulation 2015 (NSW), reg 7 Cases Cited: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Brown v West (1990) 169 CLR 195; [1990] HCA 7 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 Dacich v Director of Public Prosecutions (NSW) [2021] NSWCA 275 DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 Garcia-Godos v R; MH v R [2023] NSWCCA 145 Gilmour v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399 Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; 165 A Crim R 151 Horne v Coleman (1929) 46 WN (NSW) 30 Hull v Nuske (1974) 8 SASR 587 Johnson v Miller (1937) 59 CLR 467 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 Moore v The Attorney General (Irish Free State) [1935] AC 484 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Parker v R [2023] NSWCCA 234 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Poidevin v Semaan (2013) 85 NSWLR 758 R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; [1942] HCA 12 R v Galvin (No 2) [1961] VR 740 Re Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196 RO v R [2019] NSWCCA 183 Robson v Hallett [1967] 2 QB 939 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21 State of NSW v Tyszyk [2008] NSWCA 107 The Queen v Reynhoudt (1962) 107 CLR 381; [1962] HCA 23 Category: Principal judgment Parties: William Kershaw (Appellant/Applicant) Crown (Respondent) Representation: Counsel: T Evers (Appellant) A Bonner (Respondent)