Edwards v Police; Weber v Police; Homewood v Police
[2023] SASC 170
•1 December 2023
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
EDWARDS v POLICE; WEBER v POLICE; HOMEWOOD v POLICE
[2023] SASC 170
Judgment of the Honourable Justice McIntyre
1 December 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – EXTENT OF OBLIGATION TO GIVE REASONS – GENERALLY
CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – GROUNDS FOR DISCRIMINATION BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – GENERALLY
The appellants were participants in a climate change protest on 18 May 2023, in front of the Santos Ltd building in Flinders Street, Adelaide. They were each arrested and charged.
Ms Weber attended the protest with a can of black spray paint which she used to mark the glass window of the building. This is the carrying of an implement with intent to mark graffiti, and marking graffiti for which she was charged.
Ms Edwards and Mr Homewood attended with fire extinguishers that they used to spray paint on the front windows and doors of the Santos building. This is the intentional property damage with which they were both charged.
Ms Edwards was further charged with the offence of recklessly damaging property, as when a SAPOL officer attempted to arrest her whilst she was spraying paint from the fire extinguisher, she continued to spray the paint causing paint to cover the police offers uniform and equipment. Another officer tried to assist and, in the process, his uniform was also covered in paint.
A Magistrate heard submissions from the police and from counsel on behalf of the appellants. At the conclusion of all submissions, ex tempore sentencing remarks were delivered in each matter.
On 5 June 2023 under s 42 of the Magistrates Court Act 1991 (SA) notices of appeal were lodged in this Court. The two grounds of appeal being that the Magistrate failed to provide sufficient reasons in imposing sentence, and that the sentence was manifestly excessive in all the circumstances.
Held: The Magistrates reasons were not inadequate, and it was open for the Magistrate to impose the sentences he did, accordingly the appeals are dismissed.
Criminal Law Consolidation Act 1933 (SA) s 85(2); Criminal Procedure Act 1927 (SA) s 5(3)(a)(iii)(A); Graffiti Control Act 2011 (SA) ss 9(1), 10(1)(a); Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) s 9(2)(a), referred to.
House v The King (1936) 55 CLR 499 at [505]; R v Saleh [2017] SASCFC 74 at [35]; Playford v Police [2017] SASC 26 at [23]; Oatley v Commonwealth DPP [2021] SASCA 108 at [30]; Frank v Police (2007) 98 SASR 547 at [62]; Hill v The Queen (2010) 242 CLR 520 at [59]; Kentwell v The Queen (2014) 252 CLR 601 at [35], applied.
R v Swan (2006) NSWCCA 47 at [61]; EH v QPS [2020] QDC 205; Cuadrilla Bowland ltd v Lawrie & Ors [2020] EWCA Civ 9; R v Jones (Margaret) (2007) 1AC 136 at [89]; Brock v Police; Forrester v Police [1993] SASC 4123; Avery & Ors v QPS (2019) QDC 21, discussed.
EDWARDS v POLICE; WEBER v POLICE; HOMEWOOD v POLICE
[2023] SASC 170Magistrates Appeal: Criminal
McINTYRE J: This is a judgment concerning three related appeals against sentence imposed in the Magistrates’ Court on 19 May 2023. The appellants were participants in a climate change protest on 18 May 2023, in front of the Santos Ltd building in Flinders Street, Adelaide. They were each arrested and charged.
Sarah Edwards pleaded guilty to intentionally damaging a building contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) and recklessly damaging two police uniforms contrary to s 85(3) of the CLCA. Although the maximum penalty for each offence is imprisonment for 10 years, each offence is deemed to be minor indictable under s 5(3)(a)(iii)(A) of the Criminal Procedure Act 1927 (SA). Ms Edwards was sentenced to imprisonment for seven days. The sentence of imprisonment was suspended upon Ms Edwards entering into a bond in the sum of $500.00 to be of good behaviour for a period of 12 months. Ms Edwards was further ordered to pay compensation to Santos Ltd in the amount of $1,781.00 and compensation to South Australian Police in the amount of $5,346.28.
Bradley Homewood pleaded guilty to intentionally damaging a building contrary to s 85(2) of the CLCA and was sentenced to imprisonment for seven days. The sentence of imprisonment was suspended upon Mr Homewood entering into a bond in the sum of $500.00 to be of good behaviour for a period of 12 months with a condition that he was to pay compensation to Santos Ltd in the amount of $1,781.00.
Heike Weber pleaded guilty to marking graffiti contrary to s 9(1) of the Graffiti Control Act 2001 (SA) (‘the GCA’) and carrying an implement with intent to mark graffiti contrary to s 10(1)(a) of the GCA. The Magistrate imposed a conviction and ordered that Ms Weber be discharged without further penalty upon entering into a bond in the sum of $500.00 to be of good behaviour for a period of 12 months with a condition that she pay compensation to Santos Ltd in the amount of $1,781.00.
For the reasons that follow I dismiss the appeals.
Background
All three appellants travelled from interstate to participate in the protest as part of the Extinction Rebellion movement. Ms Edwards and Mr Homewood attended with fire extinguishers that they used to spray paint on the front windows and doors of the Santos building. This is the intentional property damage with which they were both charged.
Two uniformed police officers, Senior Constable Jason Crocker and Senior Constable First Class Matthew Hancock, were tasked to attend the scene of the protest. Senior Constable Crocker observed Ms Edwards spraying paint onto the Santos building with the fire extinguisher and attempted to arrest her. She was still spraying paint with the fire extinguisher when Senior Constable Crocker physically restrained her, causing paint to cover his uniform and equipment. Senior Constable Hancock went to assist Senior Constable Crocker and, in the process, his uniform was also covered in paint. This conduct constituted the offence of recklessly damaging property with which Ms Edwards was charged.
Ms Weber attended the protest with a can of black spray paint which she used to mark the glass windows of the same building.
The cost of removing the paint applied by all three appellants to the Santos building was estimated at $4,900.00 inclusive of GST. The two police uniforms and equipment damaged by Ms Edwards had to be replaced at a cost of $5,346.28 inclusive of GST.
The appellants were arrested. Ms Edwards and Mr Homewood spent just over 20 hours in custody. Ms Weber was granted bail on the afternoon of her arrest. All three pleaded guilty and were sentenced on 19 May 2023.
Magistrates’ Court proceedings.
The Magistrate heard submissions from the police and from counsel on behalf of the appellants. At the conclusion of all submissions, his Honour delivered ex tempore sentencing remarks in each matter.
The solicitor who represented the appellants in the Magistrates’ Court swore an affidavit in which he outlined the nature of submissions that he made in respect of sentence.[1] Those submissions included that each appellant attended at a protest held by the Extinction Rebellion group with the intention of bringing attention to their cause, specifically the need for action in relation to the climate emergency. It was also submitted that the offending occurred over a very short period of time and the paint and graffiti markings were removed shortly thereafter.
[1] Affidavit of James David Caldicott sworn on 21 August 2023 (FDN 10).
In relation to Ms Edwards, it was said that the second count of property damage arose due to paint making contact with police officers in the course of her arrest. The police officers were not the intended target. In respect of each appellant, the intent behind their actions was said to be an important factor for consideration in sentencing, particularly in mitigation. Their offending was not typical of that type of offending. It was further submitted that, whilst each appellant had antecedent history interstate, none had any antecedents in South Australia. Submissions were made concerning time in custody, and it was contended that the compensation agreed to be paid by the appellants was a significant financial pecuniary penalty.
In relation to the appellants Mr Homewood and Ms Edwards, defence counsel submitted that although a conviction would likely be recorded, time in custody was a sufficient penalty with no further action to be taken. In relation to Ms Weber, it was submitted that her time in custody plus the pecuniary penalty was a sufficient penalty and that she ought to be dealt with without the need for a bond.
The appellants’ solicitor filed an addendum affidavit outlining the submissions he made as to the personal circumstances of each appellant.[2]
[2] Addendum Affidavit of James David Caldicott sworn on 23 August 2023 (FDN 13).
Ms Edwards
Ms Edwards is a 50 year old registered nurse who lives in country Victoria. She has worked in a casual nursing pool at the Lismore Base Hospital for nine years. She has family in Queensland. She does not own or drive a car; she uses public transport to reduce her carbon footprint. The area in which she lives experienced significant flooding. She volunteers in the community assisting those who are adversely affected by this. By virtue of her beliefs concerning the climate emergency and the social housing crisis, she does not have a permanent address and effectively couch surfs. This is known as a house strike. She protests to bring attention to those displaced due to climate related disasters. Submissions were made relating to her prior convictions which arise out of her protest activities.
Mr Homewood
Mr Homewood is 50 years old and also resides in country Victoria. He is a qualified landscaper working in the building industry. Prior to that he was a concrete truck driver. He and his adult son live with his elderly parents so that they can provide assistance to them. He volunteers with a grass roots community group called “Pay the Rent” which is a first nations community group. Mr Homewood regularly participates in climate protests owing to his convictions concerning the climate emergency. Submissions were made in relation to his prior convictions interstate.
Ms Weber
Ms Weber is 69 years old and retired. She lives in country Victoria. She was born in Germany and migrated to Australia without family as an adult. She has mainly worked in health related fields, undertaking remedial massage, craniosacral therapy, domestic violence and mental health counselling. She has been involved in volunteer work focusing on climate activism. In the past she has worked with cult abuse victims and survivors of multiple perpetrator abuse. Ms Weber has received fines for similar offending in Victoria but had no criminal history in South Australia.
The Appeal
The notices of appeal were lodged on 5 June 2023, under s 42 of the Magistrates Court Act 1991 (SA) (‘the MCA’). The grounds of appeal are the same for each appellant and are as follows:
1.The Magistrate failed to provide sufficient reasons in imposing sentence.
2.The sentence was manifestly excessive in all the circumstances.
Particulars
2.1. In relation to Homewood, the Magistrate failed to apply the parity principle in imposing the same sentence as was imposed in relation to Edwards.
2.2. The Magistrate erred in his approach to the relevance of motivation and moral culpability in the context of this offending.
The appellants sought that the appeal be allowed and that they each be resentenced.
The appeal is by way of a rehearing. A decision to impose a particular sentence involves a discretionary decision. The usual principles governing appeals against discretionary decisions apply.[3] Before the Court’s power to vary sentences is enlivened, the Court must be satisfied that the Magistrate committed a process error by failing to take into account relevant matters or by having regard to irrelevant matters, or an outcome error such that the sentence is unreasonable or unjust. Once a process or outcome error has been demonstrated, the Court may exercise the sentencing discretion afresh. In this matter the appellants contend in ground 1 that there has been a process error and in ground 2 an outcome error.
[3] House v The King (1936) 55 CLR 499 at [505].
Ground 1: The Magistrate failed to provide sufficient reasons in imposing sentence.
Sentencing remarks must contain sufficient detail to allow an appellate court to adequately discharge its function.[4] A failure to give adequate reasons for imposing a sentence can amount to an error justifying the sentence being set aside.[5] However, sentencing remarks are not to be read and deconstructed with the same scrutiny as might apply to written reasons for judgment.[6] Sentencing remarks are not required to deal with every matter that may be relevant to the sentence ultimately imposed.[7] This is particularly the case when considering the remarks of a Magistrate conducting a busy list. It is not necessary for any more than brief reasons, identifying for the benefit of the appellants, what are the critical factors that weighed in reaching the decision on penalty. It is not a check list.[8]
[4] R v Saleh [2017] SASCFC 74 at [35] (‘Saleh’).
[5] Saleh at [36].
[6] Playford v Police [2017] SASC 26 at [23] (‘Playford’); Oatley v Commonwealth DPP [2021] SASCA 108 at [30] (‘Oatley’).
[7] Saleh at [34].
[8] Playford at [23]; Frank v Police (2007) 98 SASR 547 at [62].
The appellants contend that the sentencing remarks do not assist this court to understand the bases for their respective sentences. It is said that the Magistrate made very little distinction between the three appellants and failed to canvas, or canvassed in limited detail:
·the personal circumstances of each appellant;
·positive submissions made in relation to each appellant;
·the reasons why grounds of leniency were rejected;
·the approach taken to the reduction for early guilty pleas and time in custody;
·the reason for differentiating or not differentiating between the various appellants; and
·the weight, if any, that the compensation to be paid by each appellant carried in imposing the sentences.
Ground 2: Manifest excess
On a complaint of manifest excess an appellate court must be satisfied that the sentence imposed was unreasonable or plainly unjust.[9] It is insufficient to conclude that the appellate court would have come to a different decision to that ultimately reached by the Magistrate or that the sentence imposed by the Magistrate is markedly different from those imposed in other cases.[10] Rather, the sentence must be “outside the permissible range of sentences for the offender and the offence”.[11]
[9] House v The King at [404] – [505].
[10] Hill v The Queen (2010) 242 CLR 520 at [59].
[11] Kentwell v The Queen (2014) 252 CLR 601 at [35].
The appellants submit that each sentence is manifestly excessive for the following reasons:
·the position of each appellant’s offending on the scale of seriousness of offences of property damage and graffiti the personal circumstances of each appellant and the positive contributions that each makes to the community;
·the motivation and moral culpability of each appellant when contrasted with offenders who engage in ordinary criminality;
·the early guilty pleas;
·the amount of time each appellant spent in custody following their arrest; and
·the substantial amounts of compensation each appellant was ordered to pay.
Discussion
The Magistrate’s reasons in this matter were delivered ex tempore shortly after sentencing submissions were made. The personal circumstances and the pleas in mitigation would have been fresh in his mind. It was not necessary in those circumstances for the Magistrate to set out the personal circumstances of each appellant and the submissions made on their behalf in detail. The Magistrate’s references to those topics were brief, but they were adequate.
The approach taken in relation to reduction of sentence for the appellants’ pleas of guilty and time in custody was not, as contended in written submissions, arbitrary.[12] It is clear from the remarks that the Magistrate considered those issues in relation to each appellant. Ms Edwards and Mr Homewood were each entitled to a discount of up to 40% given that they entered their pleas of guilty at their first court appearance.[13] The Magistrate’s starting point for both was imprisonment for 14 days. Applying the full 40% discount to the starting point of 14 days leaves a sentence of 8.4 days imprisonment. Both Mr Homewood and Ms Edwards had spent over 20 hours in custody and, accordingly, the Magistrate sentenced them to seven days imprisonment. The Magistrate’s approach to reducing the sentences of imprisonment was correct and did not require lengthy explanation. In relation to Ms Weber, it is plain from his remarks that the Magistrate took the time she spent in custody and her early guilty plea into account in fixing sentence.
[12] Written Submissions dated 16 August 2023 (FDN 5) at [30].
[13] Sentencing Act 2017 (SA) s 9(2)(a).
The reasons indicate where the Magistrate differentiated between the appellants and where he did not. The Magistrate said that he viewed Ms Weber’s circumstances as different to those of Ms Edwards and Mr Homewood principally because of what he described as “material differences” in their antecedents. The gravamen of that difference is that Ms Weber’s prior convictions related to public order offences for which she was fined as opposed to offences causing damage to property. I note in this context that the Magistrate referred to Ms Weber pleading guilty to “damaging property”. It was contended in submissions that this was demonstrative of error in that it was a misdescription of the offences to which she pleaded guilty. Ms Weber pleaded guilty to marking graffiti and carrying an implement to mark graffiti as opposed to Ms Edwards and Mr Homewood who were charged with property damage. The Magistrate’s use of the term “damaging property” was in the context of his description of Ms Weber’s conduct. He was using the term loosely to describe what she did. Ms Weber did damage property by marking graffiti on the Santos building with a paint spray can. There is no basis for the submission that the Magistrate misunderstood the offences for which he was sentencing Ms Weber.
Ms Edwards was sentenced for two offences rather than the one offence to which Mr Homewood pleaded guilty. It is therefore said that, in imposing the same sentence for each, the Magistrate fell into error. It is however, plain from the sentencing remarks that the Magistrate did consider the issue of parity between Ms Edwards and Mr Homewood. In sentencing Mr Homewood, he stated that:
I do not regard the circumstances of the commission of your offence as being materially different from the offence that I have just sentenced Ms Edwards for. Your offence was also deliberate and pre-meditated. Your offence was also not mitigated by your beliefs about the cause that you were protesting.
Both Ms Edwards and Mr Homewood attended the protest armed with paint filled fire extinguishers which they proceeded to use to damage the Santos building. They had similar antecedents. The difference was that Ms Edwards committed the further offence of recklessly damaging the police uniforms. It seems, from his remarks, that the Magistrate accepted the submission that Ms Edwards’ conduct in relation to the police was unintentional. It was part of the same course of conduct relating to the protest overall. Further it is clear that Ms Edwards alone was ordered to pay compensation to SAPOL for the damage to the police uniforms. This was, as submitted on her behalf, a substantial financial penalty beyond that required of Mr Homewood.
The Magistrate noted the amounts to be paid by each appellant by way of compensation. It was not incumbent upon him to set out in detail what weight those orders carried in setting sentence. However, it is clear that he did take compensation into account in differentiating between Mr Homewood and Ms Edwards.
The Magistrate noted that all three appellants had travelled from interstate and had come to South Australia for the purpose of this protest. He noted that all three had prior convictions for similar behaviour interstate but none in South Australia. The remarks make it plain that he turned his mind to the fact that the appellants were motivated to commit the offending by reason of their beliefs but did not consider that those beliefs served to mitigate the seriousness of the appellants’ conduct.
The appellants contend:
The offending, the subject of this appeal are not ordinary examples of offences of property damages. While the appellants conceded by way of their pleas of guilty that protestors do not have a right to damage property the appellants submit that the Magistrate erred in his approach to the relevance of motivation and moral culpability in the context of this offending. Ultimately, the Magistrate failed to take into account a relevant consideration. The appellants submit that the Magistrate ought to have sentenced on the basis that the context in which the offences occurred served to reduce the objective seriousness of the offending.[14]
[14] Written submissions dated 16 August 2023 (FDN 5) at [46].
An offender’s motive for committing an offence can be a relevant sentencing consideration. It has the capacity to impact upon moral culpability, personal deterrence, and general deterrence.[15] The relevance of a particular motive is contingent upon the facts of each individual case. There is no doubt in the current case that the appellants were motivated by a genuine concern about, and commitment to, highlighting the climate emergency and that the Magistrate accepted this to be the case. The issue is whether he was correct to find that those beliefs did not serve to mitigate the seriousness of the appellants’ conduct.
[15] R v Swan (2006) NSWCCA 47 at [61].
There has been limited judicial consideration in Australia of the factors relevant to sentencing offenders for offences arising out of protest activities.[16] Offences arising out of environmental protests have recently been considered in the Queensland District Court. In EH v QPS, Fantin DCJ referred to relevant English authorities including Cuadrilla Bowland Ltd v Lawrie & Ors,[17] where it was said that acts of deliberate disobedience to the law committed as part of a peaceful protest are a relevant factor in assessing culpability for the purpose of sentencing in a criminal court. In particular, in Cuadrilla Lord Justice Leggatt said:[18]
It seems to me that there are at least three reasons for showing greater clemency in response to such acts civil disobedience than in dealing with other disobedience of the law. First, by adhering to the conditions mentioned, a person who engages in acts of civil disobedience establishes a moral difference between herself and ordinary law-breakers which it is right to take into account in determining what punishment is deserved. Second, by reason of that difference and the fact that such a protest is generally - apart from their protest activity - a law-abiding citizen, there is reason to expect that less severe punishment is necessary to deter such a person from further law breaking. Third, part of the purpose of imposing sanctions, whether for a criminal offence or for intentional breach of an injunction, is to engage in a dialogue with the defendant so that he or she appreciates the reasons why in a democratic society it is the duty of responsible citizens to obey the law and respect the rights of others, even where the law or other people’s lawful activities are contrary to the protester’s own moral convictions. Such a dialogue is more likely to be effective where authorities (including judicial authorities) show restraint in anticipation that the defendant will respond by desisting from further breaches.
…
[16] EH v QPS [2020] QDC 205 (‘EH’).
[17] Cuadrilla Bowland Ltd v Lawrie & Ors [2020] EWCA Civ 9 (‘Cuadrilla’).
[18] Cuadrilla at [98].
Judge Fantin also referred to the decision in R v Jones (Margaret),[19] where Lord Hoffman said:
My Lords, civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account.
[19] R v Jones (Margaret) (2007) 1AC 136 at [89] (‘Jones’).
In R v Roberts,[20] the Lord Chief Justice approved the observations of Lord Hoffman in Jones saying:
Paragraph 89 (above) echoes the understanding that the conscientious motives of protestors will be taken into account when they are sentenced for their offences but that there is in essence a bargain or mutual understanding operating in such cases. A sense of proportion on the part of the offenders in avoiding excessive damage or inconvenience is matched by a relatively benign approach to sentencing. When sentencing an offender, the value of the right to freedom of expression finds its voice in the approach to sentencing.[21]
[20] R v Roberts (2019) 1WLR 2577 (‘Roberts’).
[21] Roberts at [34].
This issue was considered in South Australia by Olsson J in Brock v Police; Forrester v Police.[22] In that case the appellants were convicted of, and fined for, trespass onto Commonwealth land during a large scale protest. Both appellants were young with no criminal history. They appealed contending that the Magistrate ought not to have recorded convictions. Olsson J, in dismissing the appeal, made the following observations in relation to offending arising in the context of a protest.[23]
As I see it the important features of the offending are these:-
(1)The offences were deliberate. They were committed after due warning and in full knowledge that their commission would almost certainly lead to arrest and prosecution.
(2)As a result of the mounting of the demonstrations, being of a type which, historically, almost invariably precipitates this type of offending, the taxpayer was required to bear policing costs of some $300,000, plus the costs of repairing damage to the fence.
(3)The nature and circumstances of the offending are such that they have a propensity to lead to situations getting out of hand and thus the possibility of persons being injured in the course of the inevitable struggles which ensue.
(4)Whilst there can be no possible objection to citizens exercising their democratic right to freedom of speech and expression, it is entirely another question when persons with particular views deliberately seek to breach laws which have also been enacted by democratic process. If this type of activity is allowed to go unchecked then it potentially encourages more general anarchy in our society. It is clear to me that the learned magistrate quite correctly assessed that the factors of general and personal deterrence must loom as paramount considerations in cases of this type. Not only do I see no reasonable basis for criticising that conclusion come to by him but I also entirely agree with it. Persons who behave in the manner here under consideration must normally expect to have a conviction recorded against them. The right to freedom of expression does not carry with it a licence to flout the law and join in activities involving damaging public property and potential injury to other persons, simply because one does not agree with what has lawfully been done by a relevant agency of Government. Other members of the community are equally entitled to their views and to have the law upheld.
[22] Brock v Police; Forrester v Police [1993] SASC 4123 (‘Brock’).
[23] Brock at [14].
In Avery & Ors v QPS,[24] the offences arose out of two protest actions at the Adani Abbott Point Coal Terminal in January 2018. During the first incident the appellants entered the Port facility and climbed onto a coal loading trestle to a height of about 20 meters before locking themselves onto the trestle. The trestle was located in an area which housed a conveyor belt, rollers, electric motors, and open moving machinery. It was an inherently high-risk area. The protest accordingly required the plant to be shut down and disrupted for some seven and a half hours. In the second incident which occurred about a week later, the protestors engaged in substantially the same actions. In allowing appeals as to the quantum of fines imposed but otherwise confirming the sentences, Lynham DCJ did not accept Adani’s estimate of the costs associated with the protests but stated:[25]
…
Whilst offending committed in the course of a peaceful protest would not generally impute a high level of culpability, and while the conscientious motives of protestors are to be taken into account, whether the protestors have behaved with a sense of proportion by not causing excessive loss, damage or inconvenience by their protest actions will be an important consideration in assessing the objective seriousness of the offending and the culpability of the offenders involved.
[24] Avery & Ors v QPS (2019) QDC 21 (‘Avery’).
[25] Avery at [81].
The offending in EH was less serious than in Avery. The offending was confined to a single incident, and it was less dangerous and disruptive. There was no identifiable loss or financial detriment caused by the appellant’s actions. In those circumstances the Judge in EH considered that the sentences imposed were manifestly excessive in all of the circumstances.
Every sentencing exercise implicitly involves an assessment of where the particular offending before the court sits on the scale of seriousness for that offending. It was not however a requirement of the sentencing exercise that the Magistrate explicitly compared the appellants’ offending with the usual property damage offences that come before the Court. The Magistrate noted the circumstances of the offending involved the appellants travelling from interstate to attend in Adelaide for a protest and attending the protest armed with implements to cause damage to property. He therefore characterised the offences as deliberate committed and pre-meditated. He accepted that the appellants have the right to protest but not to damage property. He referred to the importance of general and specific deterrence as well as the need to protect the community. These were all relevant considerations.
The Magistrate was alive to the fact that the appellants had particular motives for committing the offending and did not put aside those motives as an irrelevant consideration. Rather, he took the view that their motive did not detract from the objective gravity of the offending. Whilst the offences of damaging property were not at the upper end of the scale of objective seriousness nor were they at the bottom end of that scale notwithstanding that that the protest was of short duration due to the actions of the police and that the damage to the building at least was swiftly rectified. Ms Edwards and Mr Homewood had come equipped with fire-extinguishers filled with paint. There is no suggestion that they were writing protest slogans or other material pertinent to the cause they were protesting. They were simply intending to cause damage. The method of property damage they chose to use had the capacity to cause significant disruption and damage in a short space of time as indeed it did. Ms Weber came equipped with a spray can of paint which was likely to cause less damage in a short period of time, but this was appropriately reflected in both the charge and the sentence.
Personal deterrence was, correctly observed by the Magistrate, to be a significant sentencing consideration in relation to both Ms Edwards and Mr Homewood. Both had a substantial history of similar offending interstate, albeit Mr Homewood’s antecedents were less extensive than Ms Edwards’. Both had been treated with leniency in the past, but this had done little to deter them. Accordingly, personal deterrence was a relevant consideration, and it was appropriate for the Magistrate to conclude that a very short sentence of imprisonment was necessary in the case of Ms Edwards and Mr Homewood but that there were good reasons to suspend that sentence of imprisonment. In relation to Ms Weber, it was appropriate for the Magistrate to conclude that whilst her offending did not warrant a sentence of imprisonment it was nonetheless serious enough to warrant a conviction and a good behaviour bond. Ms Weber had some history interstate all be it none of damaging property. Personal deterrence and community protection still had some significance albeit to a lesser degree than in the cases of Ms Edwards and Mr Homewood.
Conclusion
I do not consider that the Magistrate’s reasons were inadequate. The appellants have not established that there was a process error. Further I do not consider that there has been an outcome error. It was open for the Magistrate to impose the sentences that he did, and the sentences imposed were within the permissible range.
2
12
0