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Kershaw v R

Kershaw v R

Case [2024] NSWCCA 27 1 March 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kershaw v R

Details

AGLC: Kershaw v R [2024] NSWCCA 27
Case: [2024] NSWCCA 27
Decision Date: 01 March 2024

CaseChat Overview and Summary

In this case, the appellant, Kershaw, appealed against both his conviction and sentence. The appeal against conviction related to charges of resisting officers executing duty. Kershaw had been acquitted of resisting the first two officers at the scene because the arrest was deemed unlawful. However, he was charged with resisting the third and fourth officers who arrived later and found him struggling with the first two officers. Kershaw pleaded guilty to these charges but sought to withdraw his pleas. The central issue was whether the unlawfulness of the initial arrest by the first two officers impacted the charges based on resistance to the third and fourth officers, or if he was entitled to set aside one of the convictions as they were based on identical conduct. The appeal against sentence focused on whether the sentencing judge failed to consider the invalidity of the arrest and the appellant’s cognitive deficits and subjective circumstances.

The court held that the unlawfulness of the initial arrest did not negate the resistance to the subsequent officers, thus the pleas could not be withdrawn. The court also found that the appellant was not entitled to set aside one of the convictions because both were based on the same act of resistance. The absence of specific findings by the primary judge on these points did not warrant an appeal against conviction. Consequently, the appeal against conviction was dismissed. Regarding the appeal against sentence, the court determined that the sentencing judge did not adequately consider the invalidity of the arrest and the appellant’s cognitive deficits and subjective case. As a result, the appeal against sentence was allowed, and the appellant was resentenced.

Orders