Lopes v Cook

[2020] NSWSC 1776

Supreme Court

New South Wales

Medium Neutral Citation:

Lopes v Cook [2020] NSWSC 1776

Hearing dates:

7 December 2020

Decision date:

09 December 2020

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Grant leave to appeal against conviction and sentence.

(2)   Dismiss the appeal.

(3)   Order the plaintiffs to pay the defendant’s costs of the proceedings.

Catchwords:

CRIME — Appeals — Appeal against conviction — Property offences — Aggravated unlawful entry on inclosed lands — Defences — Necessity — Whether magistrate erred

CRIME — Appeals — Appeal against sentence — Manifest excess

SENTENCING — Appeal against sentence — Co-offenders — Disparity between sentences — Where same penalty imposed on all offenders — Alleged disparity due to differing financial circumstances of offenders

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 53, 55, 72

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10, 17

Evidence Act 1995 (NSW), s 191

Fines Act 1996 (NSW), s 6

Inclosed Lands Protection Act 1901 (NSW), s 4B

Public Order (Protection of Persons and Property) Act 1971 (Cth)

Supreme Court Act 1970 (NSW), s 23

Cases Cited:

B v R [2015] NSWCCA 103

Clarkson v The Queen [2007] NSWCCA 70; (2007) 171 A Crim R 1

Cunningham v Cunningham (No 2) [2012] NSWSC 954

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Eakin v R [2020] NSWCCA 294

Lowev The Queen (1984) 154 CLR 606; [1984] HCA 46

Maritime Authority of New South Wales v Rofe (2012) 84 NSWLR 51; [2012] NSWSC 5

Mark v Henshaw (1998) 85 FCR 555

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Mattar v R [2012] NSWCCA 98

Perka v The Queen (1984) 14 CCC (3d) 385

R v Loughnan [1981] VR 443

R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199

Re Appeal of White (1987) 9 NSWLR 427

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305; (2014) 244 A Crim R 221;

Rogers v R (1996) 86 A Crim R 542

Sayer-Jones v Director of Public Prosecutions (No 2) [2019] NSWSC 1786

Taiapa v The Queen (2009) 240 CLR 95: [2009] HCA 53

Turner v Wheeler (No 2) [2016] NSWSC 431

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Zecevic v DPP (Vic) (1987) 162 CLR 645; [1987] HCA 26

Category:

Principal judgment

Parties:

Ana Lopes (First plaintiff)
Peter Maresch (Second plaintiff)
Charlize Reynierse (Third plaintiff)
Catherine Smith (Fourth plaintiff)
Maria Veira (Fifth plaintiff)
Andrew Faulkner (Sixth plaintiff)
Peter Cook (Defendant)

Representation:

Counsel:
P Singleton (Plaintiffs)
J Caldwell (Defendant)

Solicitors:
Animal Defenders Office (Plaintiff)
Office of the General Counsel, New South Wales Police Force (Defendant)

File Number(s):

2019/390074

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

13 November 2019

Before:

Keogh LCM

File Number(s):

2018/192862; 2018/192906; 2018/192875; 2018/192827; 2018/192903; 2018/192901

Judgment

Introduction

1. By summons filed on 11 December 2019, Ana Lopes, Peter Maresch, Charlize Reynierse, Catherine Smith, Maria Veira and Andrew Faulkner (the plaintiffs) appeal against their convictions for the offence of entering inclosed lands and, while there, interfering with a business, contrary to s 4B(1)(a) of the Inclosed Lands Protection Act 1901 (NSW) (the Act). In the alternative, the plaintiffs appeal from the sentences imposed. On 7 December 2020, I granted leave to the plaintiffs to file an amended summons which added a claim for relief, in the alternative, based on denial of procedural fairness.

2. In substance, the plaintiffs entered an inclosed farm, which included a shed that accommodated many egg-laying hens. They disrupted the business by seizing a few chickens and running away with them. They were arrested while still within the inclosed land. The only issue at the summary hearing was whether the plaintiffs’ acts were justified by the defence of necessity: the relevant necessity being the alleged need to save the chickens from ongoing cruelty.

3. The plaintiffs, for whom Mr Singleton appeared in the Court below and in this Court, seek to appeal as of right under s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) against their convictions and sentences and, in the alternative, seek leave to appeal under s 53 of the CAR Act against their sentences. The defendant, for whom Ms Caldwell appeared in this Court, was the prosecutor in the Court below (the prosecutor).

4. As the plaintiffs in the present proceedings were the defendants in the Court below and the defendant in the present proceedings was the prosecutor in the Court below, it is convenient to refer to the plaintiffs as the plaintiffs and the defendant as the prosecutor.

5. Section 52 of the CAR Act relevantly provides that any person who has been convicted or sentenced by the Local Court may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. Section 53 of the CAR Act relevantly provides that any person who has been convicted or sentenced by the Local Court may, with leave, appeal to this Court against the conviction or sentence on a ground that involves a question of fact, or a question of mixed law and fact.

6. At the time the offence was alleged to have been committed, s 4B of the Act relevantly provided:

“4B   Aggravated unlawful entry on inclosed lands

(1)     A person is guilty of an offence under this section if the person commits an offence under section 4 in relation to inclosed lands on which any business or undertaking is conducted and, while on those lands—

(a)  interferes with, or attempts or intends to interfere with, the conduct of the business or undertaking …

…

Maximum penalty: 50 penalty units.”

7. The value of one penalty unit is prescribed in s 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The relevant value of one penalty unit is equal to $110. It follows that the maximum penalty was $5,500.

8. The substantial increase in the maximum penalty on and from 21 November 2019 (to a maximum fine of $22,000 and three years’ imprisonment) is not to be taken into account in the present case.

The grounds of appeal

9. In the summons, the plaintiffs raise a single ground of appeal against conviction: that the Court below erred in failing to find that the prosecution had not rebutted the defence of necessity. As referred to above, in the amended summons, the plaintiffs contended, in the alternative, that the Court below denied natural justice by making findings contrary to the agreed facts without alerting the plaintiffs to that possibility. Mr Singleton contended that, had the magistrate alerted the plaintiffs to that possibility, they would have had the opportunity of giving evidence. For the reasons given below, I do not consider that this ground of appeal arises.

10. The plaintiffs raise two grounds of appeal against sentence: first, that the sentences were manifestly excessive; and, secondly, that the Court below erred by not taking into account the individual circumstances of each plaintiff.

The proceedings in the Court below

11. The matter was heard by Keogh LCM on 25, 26, 27, 28 and 29 March 2019, 17, 18 and 19 July 2019 and 20 September 2019. Her Honour gave reasons for judgment on conviction and sentence on 13 November 2019.

The evidence

12. The exhibits which were before her Honour were tendered in this Court. However, it was ultimately common ground that the only evidence which was material for present purposes was the statement of agreed facts, which was signed by the parties and admitted on the seventh day of the hearing pursuant to s 191 of the Evidence Act 1995 (NSW). Because of the detail in, and relevance of, the agreed facts, they are set out in full below:

“1.   Each of the defendants [the plaintiffs in this Court] who attended the vicinity of the property 220 Mowbray Park Road, Lakesland (‘the Property') on 21 June 2018 did so:

(a)    being ready and willing to assist the RSPCA by taking hens from the Property into their custody;

(b)    intending to wait outside the Property until called upon by the RSPCA to assist;

(c)    intending in respect of any particular lien taken into his or her custody either:

(i)    to keep the hen in his or her care until long-term arrangements could he made for the hen; or

(ii)    to take the hen to a veterinarian, as directed by the RSPCA or as the circumstances appeared to require; and

(d)   having the alleviation of suffering of chickens (as described above) as the predominant purpose, but in the case of some defendants having the further purposes of:

(i)    placing moral pressure on the RSPCA to alleviate the suffering of the chickens; and

(ii)    more generally to draw attention to the evil of animal cruelty (particularly with respect to chickens).

2.    As at the time that the defendants (and others) entered the Property (being at or about 11:39 am on 21 June 2018):

(1)    RSPCA officers were still in attendance at the Property and had advised the defendants that their investigations were ongoing.

(2)    Each of the defendants honestly and reasonably believed:

(a)    Present in the shed on the Property that has been the subject of evidence in the proceedings ('the Shed’) were several thousand chickens.

(b)    In the days leading up to 21 June (including on 20 June), those chickens had been subjected to gross cruelty, including because they had been deprived of food and water and because the Shed was in such serious disrepair it was unfit to be inhabited by chickens.

(c)    In the days leading up to 21 June (including on 20 June), hundreds or thousands of chickens had died as a result of their maltreatment.

(d)    In the period between the visit of RSPCA officers to the Property on 20 June 2018 and the visit of RSPCA officers to the Property on 21 June 2018, further cruelty, including death, had been occasioned to chickens in and about the Shed.

(e)    To leave the chickens in the care of the person who had had charge of them in the period to 21 June 2018 (now known to the Court to be Shawn Stone) would pose an unacceptable risk and likelihood that those chickens would be subjected to further cruelty.

(f)    The RSPCA officers in attendance on 21 June 2018 had made a decision (at or about 11:30) to leave the chickens in the care of Mr Stone from then onwards for an indeterminate time during which further investigation would occur.

(g)    The only way that the cruelty that was occurring and likely to continue could be avoided was to take the chickens from Mr Stone's custody, necessitating entry onto the Property and the taking of chickens away.

(h)    Each of:

(i)    the harm involved in entering the land;

(ii)    the harm involved in taking the chickens; and

(iii)    the harm involved in the (consequential) disruption to the business being undertaken on the Property

was significantly less than the harm involved in the cruelty and likely future cruelty, and that the entry onto the land was a necessary and proportionate act to prevent the greater harm.

3.    The predominant (and in some cases sole) reason that each of the defendants entered the properly, took chickens and consequentially disrupted the business was to end and prevent the cruelty to the chickens that was occurring and likely to occur.

4.    At or about the time of entering the Property, the defendants donned biosecurity suits. However, no defendant made a full and proper inspection to ascertain what, if any, bio-security measures were in place at the Shed.

5.    At and about the time that the defendants took chickens from the Shed, each defendant had seen the condition of the chickens and their accommodation and thereupon honestly and reasonably believed that each of the things listed above at 2(2) was and remained true.

6.    In taking chickens and attempting to remove them from the Property, the defendants:

(a)    were acting upon the beliefs stated at 2(2);

(b)    put the ending and prevention of cruelty to the particular chickens in question above the bio-security risk, if any, that they thought might be involved; and

(c)   intended to care for the chickens in accordance with 1(c)(i) and (ii) above.

7.    The beliefs listed at 2(2)(a)-(d) and (f) above were true and correct, and cruelty to the chickens in Mr Stone's care continued until 24 June 2018.

8.    At no time after the defendants entered the Shed did any defendant check whether or not sufficient feed and water had been put in place for the chickens.

9.    At no time did any defendant ask any RSPCA officer about bio-security.

10.    RSPCA Officer Croker honestly believed that he was not legally permitted to inform anyone of any bio-security hazard that may have been present, and he did not do so.

11.    A number of the defendants took instructions from the defendant Smith about handling of chickens.

12.    No defendant intended any violence.”

The submissions relating to the defence of necessity

13. It was common ground in the Court below that the plaintiffs had the evidential onus of raising the defence of necessity and that the prosecutor had the legal burden of disproving the defence.

14. In the Court below the prosecutor argued that the defence of necessity had been excluded because the plaintiffs had not exhausted all legal options (including because the Royal Society for the Prevention of Cruelty to Animals (RSPCA) was there). Although the prosecutor accepted that the plaintiffs’ beliefs (as set out in the Agreed Facts) were honestly held, he argued that their actions were not proportional. The prosecutor also argued that the defence was not available because the plaintiffs had acted to avoid harm to an animal and not a person.

The reasons relating to the defence of necessity

15. As the ground of appeal against conviction relates solely to the defence of necessity, I propose to extract those passages of her Honour’s reasons which demonstrate why her Honour found that the defence of necessity had been excluded:

“38.    The elements required to establish necessity were detailed in the Victorian case of Loughnan, (which also involved a prison escape) as follows,

1.    The criminal act must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect. As an aside it was noted there was no need to discuss the limits of the damage inflicted as the case concerned the irreparable evil of the threat of death and ‘If the law recognises the defence of necessity in any case it must surely do so when the consequences are the possible death of the accused’,

2.    The threat must be immediate and

3.    The response must be proportionate i.e. a reasonable man in the position of the accused would have considered that he had no alternative to doing what he did to avoid the peril.

39.    The court went on to note the element of immediate peril means the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril.

40.    There was no immediate peril faced by any of the accused in this case and it is questionable whether there existed any obligation or duty on them to protect the animals in the charge of Mr Stone. I have no doubt though they felt they had a moral obligation to intervene.

41.    In summary then Loughnan requires an urgent situation of imminent peril to exist in which the accused must honestly believe on reasonable grounds that it is necessary for him or her to do the acts which are alleged to constitute the offence in order to avoid the threatened danger and secondly those acts must not be disproportionate to the threatened danger.

42.    Where the RSPCA had ensured the birds had been provided with sufficient feed and water and the defendants did not enquire of this immediately before they entered or check this after they entered the shed, it cannot be that the situation of imminent peril existed or that the defendant's actions were proportionate.

‘The imminence and seriousness of the threat to which the accused is supposedly responding are important and often critical factual considerations going to the accused belief and the reasonableness of it.’ [fn: Rogers at 545]

43.    As stated earlier the accused must have had no reasonable opportunity for an alternative course of action which did not involve a breach of the law and the concept of reasonableness is not intended for the making of choices or value judgments of a kind which would undermine the principle itself. The authorities have held reasonableness is not designed to allow people to choose for themselves whether to obey the law.

44.    In the case of Rogers there was available the alternative course of bringing the threat to the attention of the authorities and seeking protection. Here there was also available the course of bringing the cruelty to the attention of the authorities. The defendants however, were not satisfied with the steps then taken by the RSPCA. It was their belief the animals should be removed from Mr Stone's care whilst the RSPCA was apparently of the view that sufficient water and feed should be provided to the birds while further investigations be undertaken. The RSPCA did have a duty to act and their actions, although occurring only after the situation was brought to their attention by members of the public, appeared in all the circumstances reasonable and proportionate. In contrast the defendants' actions were not reasonable and proportionate. For instance I note Mr Faulkner's evidence that his stated desire was to remove the birds from the ‘monster’ Mr Stone who had custody of the birds.

…

49.    In this case the defendants were in a similar position to the protesters in Willes case. They knew they did not have permission to enter the farm or the shed, they did not have a lawful excuse to be on the property, or the consent of anyone to be on the property and they had not been invited onto the property.

50.    The video footage tendered reveals that it was made abundantly clear to the defendants that they were not permitted on the land and they were repeatedly asked to leave.

…

55.    The obvious conclusion to be drawn in this case is that even if the defendants had an honest and reasonable belief that animals were being treated cruelly they could not establish a right for them to enter the land and even if in fact, cruelty was occurring, that would not give them a right to enter the premises and steal the property of another.

…

59.    Institutionalised justice is to be contrasted with retributive justice, or vigilante conduct, where victims and their families or I would add members of the community or interest groups are responsible for avenging crimes committed against them or as in this case addressing wrongdoing they identify. The court said retributive justice leads to a never ending cycle of crime.

60.    As morally justified as the defendants may have felt they were in regard to their ultimate purpose, which was as I understand it, the identification of and intervention against what they believed would be the continued infliction of cruelty towards animals in the custody of Mr Stone, their conduct was not lawful and cannot be excused because of their perceived higher purpose.

61.   Accordingly I find the defence of necessity is not made out.”

[Footnotes omitted.]

The proceedings on sentence

16. Mr Singleton submitted to the magistrate that the first and second plaintiffs could afford to pay a fine; the third plaintiff had “extremely limited” capacity to pay a fine; the fourth plaintiff was employed as a volunteer but was supported by her family; that the fifth plaintiff was suspended from her employment as a consequence of being charged with the offences; and that the sixth plaintiff was self-employed as a mobile disc-jockey. These submissions were not supported by evidence but were not controverted. The magistrate indicated that she would sentence on the basis that each of the plaintiffs was of good character.

16. Mr Singleton submitted that the Court below ought, pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act, direct that the charge be dismissed and not proceed to conviction, even though it had found each of the plaintiffs guilty.

17. At the conclusion of the sentencing hearing, her Honour gave ex tempore reasons, which included the following:

“… Also it was submitted that there was no damage actually done. The damage is that vigilantism. If you are of the view that you can circumvent the law, then so is everyone, and the danger in relation to that is obvious. If you have concerns about, as I said, the lack of teeth in relation to the RSPCA, deal with that by way of appropriate pressure with your parliamentary members or becoming a parliamentary member, but it is not by breaking the law, so there was some damage done.

As to whether it was planned or not, it seems to me there was some planning. To turn up with cages, to have the communication, as I understand it, which was trying to establish that there was some kind of imprimatur given by the RSPCA for intervention by citizens who had no authority is just something that I do not accept, and it shows that there was some forethought and some planning.

Again, for the purposes of making a distinction between those with whom there is some - it may be inexpedient to impose a penalty and those for whom it is not, then that is another relevant factor. I think it is a shame that someone's career may be affected by a penalty being imposed, but that is the risk that you take when you decide that your moral convictions are such that you will take that risk and to come to Court and then ask me, or ask a Court, to prioritise your career and your circumstances above the law, where you have not pleaded guilty, where you have disputed the facts and to a significant degree, it seems to me that that is an unfortunate consequence, not one that anyone would wish upon another person who has, as I said, the moral fortitude to do what was done, but it is, it seemed to me, a natural consequence of what occurred.”

19. Her Honour, when specifying the penalty imposed in respect of those which included the plaintiffs (being those accused persons who had not pleaded guilty), said:

“IN RELATION TO ALL OF THE OTHER DEFENDANTS [including the plaintiffs], THE COMMENTS I HAVE MADE ARE APPLICABLE, OBVIOUSLY, TO THEIR CASE; I AM NOT GOING TO REPEAT THEM. IN MY VIEW, FINES SHOULD BE IMPOSED. IT IS NOT APPROPRIATE OR EXPEDIENT FOR THERE TO BE NO PENALTY; I HAVE PLACED MY REASONS ON THE RECORD. THE MAXIMUM FINE IS $5,500.

IN MY VIEW, AN AMOUNT AROUND THE 2,000 MARK WOULD BE APPROPRIATE, OR 2,500. THE REASON, THOUGH, THAT I AM NOT GOING TO IMPOSE THAT FINE ON ALL OF THE DEFENDANTS IS THAT I AM MINDED THAT FOR SOME THEY HAVE SOME SIGNIFICANT FINANCIAL RESTRICTIONS OR DIFFICULTIES, AND THERE IS STILL THE ARGUMENT IN RELATION TO PARITY. IN THE CIRCUMSTANCES, EACH PERSON WHO IS BEFORE THE COURT FOR TRESPASSING IN THE AGGRAVATED FORM IS FINED $1,500.

I do note that it is obvious that it is aggravated and why that is. There is an additional element of criminality and that is to interfere with the business; that is what was intended.

IN RELATION TO MR FAULKNER, HE HAS THE ADDITIONAL OFFENCE OF THE ASSAULT ON THE OFFICER. IN THE CIRCUMSTANCES, IT SHOULD BE FINE AND HE IS FINED $500.”

Whether leave to appeal is required

20. The distinction between a ground that involves a mixed question of fact and law on the one hand and a ground that involves a question of law alone is significant because leave is required in respect of the former but not the latter. The distinction is illustrated by R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 in which the Court held that the process of ‘applying’ a legal principle to the facts of a case involves a mixed question of fact and law and that even if there was error in applying the principle, leave would be required: R v PL at [26] (Spigelman CJ, McClellan CJ at CL and R A Hulme J agreeing). By contrast, the statement of a legal proposition, such as the element of an offence involves a question of law alone: at [27] (Spigelman CJ).

21. There are aspects of the plaintiffs’ submissions that raise a question of law alone: namely, what are the elements of the defence of necessity. This is relevantly analogous to the identification of the elements of the offence in R v PL. However, whether the defence of necessity sufficiently arose or was excluded by the Crown is a question of mixed law and fact, as is the question whether a sentence is manifestly excessive or whether the sentencing judge has applied the principles of parity in accordance with the law. Accordingly, leave is required. Ms Caldwell did not oppose a grant of leave.

The application for leave to appeal against conviction

22. It was common ground that, if, on the facts, the prosecution had not disproved the defence of necessity, each of the plaintiffs was entitled to be acquitted. The issue between the parties turns on the identification and application of the legal principles associated with the defence of necessity. The differences between the parties can be summarised briefly.

23. Mr Singleton submitted that, ignoring matters such as onus, the following were the elements of the defence of necessity:

1. the accused acted in order to avoid, prevent or alleviate some harm or evil (the purpose element); and

2. the accused honestly and reasonably believed that:

1. that harm or evil was not less than the harm or evil involved in the action that he or she took: that is, the accused’s action was, in his or her honest and reasonable belief, proportionate (the proportionality element); and

2. that action was necessary to avoid the harm: that is, no other action could have, in the accused’s honest and reasonable belief, prevented the harm or evil in question (the necessity element).

24. Ms Caldwell submitted on behalf of the prosecutor that the elements of the defence of necessity were:

1. the criminal act was done in order to avoid the infliction of irreparable evil on the accused or others that he or she was bound to protect (the purpose element);

2. that the accused honestly believed on reasonable grounds (which could include imminent peril) that the criminal act was necessary to avoid the infliction of irreparable harm (the necessity element); and

3. that the acts performed to avoid the peril were not disproportionate to the peril to be avoided (the proportionality element).

25. For the reasons that follow I reject the plaintiffs’ formulation of the elements and accept the prosecutor’s formulation.

26. I understood it to be common ground that the agreed facts (and in particular paragraph 2) were sufficient not only to raise, but also to establish element (2) of the defence (as per the prosecutor’s formulation of the elements), save for the question of the categorisation of the harm as being “irreparable” (which Ms Caldwell contended was not met for the purposes of element (1)).

Relevant authorities

27. Mr Singleton relied on several cases which did not insist on the requirement that the acts be done to avoid the infliction of harm on the accused or someone the accused was bound to protect. These cases pre-dated the seminal decisions of R v Loughnan [1981] VR 443 (Loughnan) and Rogers v R (1996) 86 A Crim R 542 (Rogers), in so far as such cases are inconsistent with what was held in Loughnan and Rogers, they must be regarded as no longer being good law.

Loughnan

28. In Loughnan, the Full Court of the Supreme Court of Victoria considered the defence of necessity in the context of the applicant whose case at trial was that the reason he had escaped from gaol was that he believed that he would be killed by someone in the gaol that night. The trial judge had refused to allow the defence of necessity to be put to the jury. The Court dismissed the appeal. Young CJ and King J held that there was no evidence upon which a jury could have found that the applicant’s escape was reasonably proportional to the threat which he said he feared and that therefore the trial judge was correct not to leave the defence to the jury. Crockett J held that although the defence could have been left to the jury there had been no miscarriage of justice because of the substantial evidence against the defence.

29. The Court (Young CJ and King J) outlined the elements of the offence at 448 as follows:

“… [T]here are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect. The limits of this element are at present ill-defined and where those limits should lie is a matter of debate. But we need not discuss this element further because the irreparable evil relied upon in the present case was a threat of death and if the law recognizes the defence of necessity in any case it must surely do so where the consequence to be avoided was the death of the accused. We prefer to reserve for consideration if it should arise what other consequence might be sufficient to justify the defence: cf. People v Lovercamp (1975) 43 California Appeals 3d 823, in which the consequence to be avoided was forcible homosexual activity.

The other two elements involved … can for convenience be given the labels, immediate peril and proportion, although the expression of what is embodied in those two elements will necessarily vary from one type of situation to another.

The element of imminent peril means that the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril. As Edmund Davies, LJ (as he then was) pointed out in Southwark LBC v Williams, supra, at p. 746, all the cases in which a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril. Thus if there is an interval of time between the threat and its expected execution it will be very rarely if ever that a defence of necessity can succeed.

The element of proportion simply means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril? ...”

30. Their Honours also addressed the relationship between the defence of self-defence and the defence of necessity at 449 in the following terms:

“The well-known defence of self defence, if not capable of being brought within the general description of a defence of necessity, is at least analogous to it, but in comparing the kind of necessity which requires self defence with the necessity which requires escape from prison there is, of course, an essential difference in that in the former the accused will always or almost always attack the person threatening him whereas in a case where a prisoner pleads necessity as a justification for escaping, the criminal act which he commits is not directed to the person making the threat. But we do not see any reason why the same two elements should not be involved. First, an urgent situation of imminent peril must exist in which the accused must honestly believe on reasonable grounds that it is necessary for him to do the acts which are alleged to constitute the offence in order to avoid the threatened danger. Secondly, those acts must not be disproportionate to the threatened danger.”

31. Crockett J formulated the elements in the following terms at 460:

“1. The harm to be justified must have been committed under pressure either of physical forces or exerted by some human agency so that ‘an urgent situation of imminent peril’ has been created; 2. The accused must have acted with the intention of avoiding greater harm or so as to have made possible ‘the preservation of at least an equal value’. 3. There was open to the accused no alternative, other than that adopted by him, to avoid the greater harm or ‘to conserve the value’ …”

Zecevic

32. In Zecevic v DPP (Vic) (1987) 162 CLR 645; [1987] HCA 26 (Zecevic), the High Court considered the elements of self-defence. The trial judge had withdrawn the issue of self-defence from the jury on the basis that Zecevic’s belief that the deceased was going to kill him was not reasonable. The Victorian Court of Criminal Appeal dismissed his appeal. The High Court allowed the appeal and held at 661 (Wilson, Dawson and Toohey JJ, Mason CJ agreeing):

“… The question to be asked … is whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. …”

Rogers

33. The New South Wales Court of Criminal Appeal considered Loughnan in Rogers. In Rogers the appellant had spent many years in custody before attempting to escape, for which he was convicted. His defence was that he tried to escape because he feared a life-threatening attack. He gave evidence at trial that he refused to be placed in protection because he feared that it would place him in greater danger. The trial judge refused to allow the defence of necessity to be put before the jury which inevitably led to his conviction for attempting to escape.

34. The appellant put his appeal on two bases: first, that the issue of necessity ought to have been left to the jury; and, secondly, that the test of necessity in Loughnan needed to be modified to take into account the developments in the principles relating to self-defence as enunciated by the High Court in Zecevic.

35. In Rogers, Gleeson CJ (Clarke JA and Ireland J agreeing) explained the effect that Zecevic had on directions to juries in homicide cases by comparing such directions when Loughnan was decided with directions given post-Zecevic at 545 as follows:

“When that [Loughnan] was written, it was customary for juries in homicide cases, when being instructed on the elements of self-defence, to be told that the first thing to consider was whether, when the accused killed the deceased, the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him …

Since the decision of the High Court in Zecevic, juries are instructed that the ultimate question is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. However, the imminence and seriousness of the threat to which the accused was supposedly responding are important, and often critical, factual considerations going to the accused's supposed belief, and the reasonableness of his belief.”

36. At 546, Gleeson CJ accepted the appellant’s submission that the decision in Zecevic meant that it was more appropriate to treat the factors, that the situation be urgent and the peril be imminent, which had formerly been requirements, as considerations which were relevant to the applicant’s belief as to his position and as to the reasonableness and proportionality of his response.

37. His Honour identified the rationale of the defence in the following passage at 546:

“An instructive analysis of the ‘ill-defined and elusive concept’ of necessity is to be found in the judgment of Dickson J, in the Supreme Court of Canada, in Perka (1984) 14 CCC ( 3d ) 385.

Using the term ‘defence’ without any implications as to onus of proof, his Lordship pointed out (at 399) that it has been universally recognised that, if the defence of necessity is to have a place in the criminal law, it must be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale. Nothing could better illustrate that proposition than the invoking of necessity as an answer to a charge of escaping, or attempting to escape, from prison. By the standards of most people, prisons are hazardous places. Many of their inmates are dangerous criminals. Grievances, real or imagined, often result in violent retribution. Rumours, suspicion and resentment flourish. The authorities endeavour to minimise risks, but it is acknowledged that nobody's safety can be absolutely guaranteed. People undergoing punishment are compelled by law to live in those circumstances, and the law reinforces that compulsion by making it an offence to escape from lawful custody. In what circumstances, then, does the law permit a person who escapes from lawful custody to excuse his or her conduct by saying: ‘I feared for my safety?’

Dickson J said (at 398) that the idea behind the defence of necessity was that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or altruism, overwhelmingly impel disobedience. In Moore v Hussey (1609) Hobart 93 at 96; 80 ER 243 at 245, Hobart CJ said that all laws admit certain cases of just excuse, when they are offended in the letter, and when the offender is under necessity. However, the writings on the subject all observe the extreme caution with which the concept has been regarded.”

[Emphasis added.]

38. Gleeson CJ described reasonableness and proportionality as “essential control mechanisms” in the following passage at 546:

“As with self-defence, considerations of reasonableness and proportionality are essential control mechanisms. Dickson J [in Perka v The Queen (1984) 14 CCC (3d) 385] referred (at 400) to ‘the requirement that the situation be urgent and the peril be imminent’, but in a context consistent with the approach that this is a factual matter of relevance to the contention that the breach of the law in question was, in practical terms, unavoidable.

The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.”

39. The Court in Rogers held that the issue was whether the appellant honestly believed, on reasonable grounds, that escape from prison was necessary in order to avoid threatened death or serious injury. It concluded that, having regard to the system of protection within the prison and the appellant’s choice not to apply for protection, the trial judge was correct to take the issue away from the jury as it would not have been open to the jury, properly instructed in the law, to reach any conclusion other than that going into protective custody was a reasonable alternative to escaping.

40. Rogers has been accepted as having modified the law relating to the defence of necessity in Loughnan: see, for example, Clarkson v The Queen [2007] NSWCCA 70; (2007) 171 A Crim R 1 (Clarkson); Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53 (Taiapa) at [37]-[38]; and B v R [2015] NSWCCA 103 at [301] (Simpson J). In Clarkson the defence was found not to justify the appellant’s conduct in obtaining passports under false names to mask his identity from certain violent criminals with whom he had associated. In Taiapa, the defence was found not to justify the appellant complying with demands of drug dealers who threatened to harm his pregnant wife and his mother. In B v R the defence was found not to justify the conduct of a mother taking her child out of Australia in the belief that the child was being sexually abused by the child’s father and that there had not been, and would not be, a proper investigation into the sexual abuse allegations.

39. Ms Caldwell also referred to the decision of Mark v Henshaw (1998) 85 FCR 555, which post-dated Rogers. In that case, the appellants had been charged with a breach of the Public Order (Protection of Persons and Property) Act 1971 (Cth). The appellants raised the defence of reasonable excuse. The defence of necessity was not raised. In Mark v Henshaw, as in the present case, it was common ground that the appellants’ beliefs were genuinely held on reasonable grounds. Their Honours considered the critical issue not to be limited to the appellants’ state of mind but rather to the question whether “the trespassers’ conduct is acceptable to the general community”. That is, their Honours held that there were both subjective and objective elements, the latter element being purely objective. Ms Caldwell contended that this approach applied, by analogy, to the defence of necessity in that the second element contained subjective (whether the belief was honestly held) and objective elements (whether there were reasonable grounds for the belief) but that the third element, the proportionality element (whether the conduct was proportional) was purely objective.

Consideration

42. The defence of necessity is known for its rarity. Ms Caldwell’s submission that there had been only one case in New South Wales where the defence had been successful was unchallenged. She identified the District Court decision of Re Appeal of White (1987) 9 NSWLR 427 (Shadbolt DCJ). It is significant that this decision is reported in the authorised reports. In that case, White was not convicted of speeding towards the hospital in a car in which his gravely ill son was a passenger. White was found to have been concerned that his son would die if he did not get medical help urgently.

The elements of the defence

43. Mr Singleton contended that it was plain from the caveats placed by Young CJ and King J on the first element and the facts in Loughnan that their formulation of the first element was merely obiter. He pointed to earlier cases which established that the defence of necessity could justify criminal conduct where the purpose of the criminal act was to protect property or a stranger who had no pre-existing relationship with the accused. He submitted that, once it was accepted that the defence of necessity was available to protect property, the defence must, as a matter of logic, extend to animals such as the battery hens in the present case. While Mr Singleton accepted that the defence would not apply to saving the life of every creature (he excluded cockroaches from the defence), he contended that battery hens were within the ambit of the first element of the offence and that it was not to the point that the plaintiffs did not own, or have any prior connection with, them.

44. Mr Singleton contended that this Court ought proceed from the rationale for the defence of necessity outlined by Dickson J in Perka v The Queen (1984) 14 CCC (3d) 385 (which was referred to in Rogers) and find that the rationale would be inconsistent with limiting the defence to the protection of oneself and those whom one is bound to protect (as evident from the formulation of element (1) in Loughnan and Rogers). He particularly relied on the passage extracted above concerning a “liberal and humane criminal law”.

45. Further, he submitted that there was no requirement that the purpose be the sole purpose and that it was enough that it be a predominant purpose. He also submitted that, as a matter of fact in the present case, it was an agreed fact (in paragraph 3) that the predominant reason why the plaintiffs entered the land and took the chickens was to prevent further cruelty to the chickens and that it was the sole reason in respect of some of the plaintiffs. The identities of those plaintiffs for which it was the sole reason were not the subject of agreement. Mr Singleton submitted that it was, accordingly, up to the prosecutor to prove, in respect of each plaintiff, that this was not the sole reason.

46. Although the wording of the joint judgment in Loughnan as to the purpose element is heavily qualified, the dicta has been adopted in an unqualified way in the decisions of intermediate appeal courts in New South Wales referred to above as well as Mattar v R [2012] NSWCCA 98 at [7] (Harrison J, Beazley JA and McCallum J agreeing). Thus, although none of the cases in this jurisdiction relied on by the prosecutor related to a claim for the defence of necessity for the protection of a stranger or property, there is no indication in these authorities that such protection would be within the limits of the defence. Indeed, the formulation of the elements is to the contrary. While Gleeson CJ in Rogers set out the underlying rationale for the defence of necessity and referred to “a liberal and humane criminal law”, I do not understand his Honour to have suggested that judicial officers have a warrant for redrafting the elements by reference to the rationale per se. Indeed the reasoning highlighted in that passage is to the opposite effect: the limits of the defence must be strictly circumscribed because of the risk of the defence becoming a licence to breach the criminal law. I accept Ms Caldwell’s submission that the fact that the purpose element has not received close consideration in the decided cases does not mean that the accepted limitation ought be abandoned.

47. As to the proportionality element, I note that the decisions that post-date Rogers have not construed this element as merely something about which the accused must have an honest and reasonable belief, but as a stand-alone separate element which is not determined by what is in the accused’s mind at the relevant time.

48. It follows that the elements of the defence of necessity (which, once sufficiently raised by the accused person on the basis of evidence, must be excluded by the prosecution beyond reasonable doubt) are:

1. the criminal acts were done solely in order to avoid the infliction of irreparable harm on the accused or others that he or she was bound to protect: Loughnan at 448 (the purpose element);

2. the accused honestly believed, on reasonable grounds, that the criminal acts were necessary in order to avoid the harm: Loughnan, as modified by Rogers (the necessity element);

3. the accused had no alternative to doing what he or she did to avoid the harm: Loughnan (the proportionality element).

The alleged errors in the decision of the Court below

49. The Court below found that the defence of necessity “had not been made out”. The plaintiffs contended that this formulation indicated that the magistrate had misapprehended where the onus of proof lay. I do not regard her Honour’s reasons as reflecting any such misapprehension. As referred to above, there are two aspects to the onus: first, the evidentiary onus which lay on the plaintiffs, as accused persons, to raise the defence; and, secondly, the onus of proof of excluding the defence which rested on the prosecutor.

The purpose element

50. In the present case, the Court below considered that the purpose element could not be, and was not, made out because, although her Honour accepted that the plaintiffs “felt that they had a moral obligation to intervene”, she found that there was “no immediate peril faced by any of the accused in this case and it is questionable whether there existed any obligation or duty on them to protect the animals in the charge of Mr Stone.”

51. Because the Court below was both the tribunal of fact and the tribunal of law, her Honour did not need to consider, as would have been the case had the trial been on indictment before a jury, whether there was sufficient evidence as a matter of law to allow the defence of necessity to be left to the jury. For the reasons articulated in the judgments, including the oft-cited judgment of Gleeson CJ in Rogers, there are substantial limits on the defence of necessity. If it were otherwise, the defence could do untold harm to the principle of equality before the law and to institutionalised justice since it would leave the question of which laws would be respected and which could be broken to the moral views of individual vigilantes rather than to Parliament and the common law.

52. Had the summary proceedings before the Court below been a trial by jury, the trial judge would have been obliged, on the basis of the legal principles outlined above, to remove the defence of necessity from the jury. The plaintiffs had no prior connection, whether proprietary or otherwise, with the unfortunate chickens. The authorities which bind me provide no support for the contention that the defence of necessity extends to non-humans or chattels. The plaintiffs’ moral concern for the fate of the chickens could not justify their otherwise unlawful entry onto the property. For these reasons, the purpose element did not arise as a matter of evidentiary onus (which lay on the plaintiffs) and was in any event plainly excluded by the prosecutor.

53. In these circumstances it is not necessary to address Mr Singleton’s submission (referred to above) that it was for the prosecutor to prove for which of the plaintiffs, the prevention of cruelty to the chickens was the sole purpose of their entering the inclosed land.

54. Although the reasons of the Court below relating to the purpose element were sufficient to make the defence of necessity inapplicable and to render the plaintiffs’ convictions for the offence under the Inclosed Lands Protection Act inevitable, her Honour also found that the necessity and proportionality elements either did not arise or had been excluded by the Crown. It is, accordingly, also necessary, as a matter of completeness, to consider the matters raised by the plaintiffs with respect to these elements.

The necessity element

55. Her Honour expressed the necessity element in the language of Loughnan, without modifying it to take into account what was said in Rogers. For example, her Honour said, at [41], “Loughnan requires an urgent situation of imminent peril to exist” and found, at [42], “it cannot be said that the situation of imminent peril existed”.

56. The plaintiffs submitted that these statements were erroneous since they did not take into account the change in the law effected by Rogers that imminent peril was a relevant factor in assessing whether the accused person had the requisite honest and reasonable belief rather than a legal requirement. The decisions of the Court below must be read fairly as a whole. The magistrate was correct to set out what Loughnan said. Had her Honour stopped there, this may have amounted to error. However, her Honour cited the salient passage from Rogers in [42] of the judgment and ought, accordingly, to be taken to have appreciated its gravamen.

57. It was common ground in this Court that the necessity element had been established by the agreed facts. However, as set out above, the evidence taken at its highest could not establish the purpose element, which meant that the plaintiffs’ convictions were not only sound but inevitable. Thus any error regarding the necessity element could not have affected the result, even in the context of criminal proceedings, because it made the defence of necessity inapplicable: see RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305; (2014) 244 A Crim R 221 at [28] (Basten JA, Beazley P agreeing), referring to Maritime Authority of New South Wales v Rofe (2012) 84 NSWLR 51; [2012] NSWSC 5 at [107] (Brereton J).

The proportionality element

58. The plaintiffs contended that it was not open to the magistrate to find that the defence of necessity was “not made out” in circumstances where the agreed facts meant that the Crown could not prove that each of the plaintiffs did not honestly believe, on reasonable grounds, that he or she had no alternative to doing what he or she did to avoid the harm. The plaintiffs’ submission on this element rested on the proposition that proportionality, like necessity, formed part of the honest and reasonable belief of the accused. Mr Singleton contended that the circumstance that the prosecutor had agreed that each of the plaintiffs honestly and reasonably believed each fact in paragraph 2 led inexorably to the proposition that the proportionality element was satisfied.

59. I do not accept this submission. For the reasons given above, proportionality is a stand-alone element which is objective and does not depend on the accused’s mental state. Thus, it does not follow from the agreed fact that each of the plaintiffs honestly and reasonably believed that the only way the cruelty could be avoided was to take the chickens away (paragraph 2(2)(g)), that the conduct was proportional. The decision of Mark v Henshaw is helpful by way of analogy, although it concerned the defence of reasonable excuse rather than necessity.

60. The plaintiffs particularly relied on the facts at paragraphs 2(2)(b), (c), (e), (g) and (h) and 7. It is important to include in the factual matrix relevant to the proportionality element (as her Honour did) the fact in paragraph 2(1) that when the plaintiffs entered the property, RSPCA officers were still in attendance there investigating the very matter which concerned the plaintiffs: namely, the conditions in which the chickens were being kept. This fact, which was an agreed fact, formed the basis of her Honour’s findings at [42]-[44] that the prosecution had excluded the necessity element because of the availability of an alternative. I am not persuaded that her Honour’s approach revealed any error.

61. It is not necessary to determine the alternative ground that was added in the amended summons since, as referred to above, it was common ground that the agreed facts were sufficient to establish the necessity element. Accordingly, there was no evidence that the plaintiffs could have given which would have assisted them to raise the question of their honest belief on reasonable grounds or improve on what was in the agreed facts on that issue. There was therefore no denial of procedural fairness as a matter of “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [38] (Gleeson CJ).

Conclusion

62. The plaintiffs have not made out any of their alleged errors in relation to the application for leave against conviction.

Whether leave ought be granted in respect of the conviction

63. As referred to above, leave is required as the plaintiffs raise questions which are not questions of law alone. I have reservations about whether the arguments advanced on behalf of the plaintiffs were sufficient to warrant a grant of leave. The defence of necessity was, as her Honour found, plainly not available in the circumstances of the present case since, among other reasons, the purpose element was excluded given the nature of the harm and the plaintiffs’ lack of connection with the chickens. However, as I have considered this matter extensively in these reasons and as the grant of leave was not opposed by the prosecutor, I am persuaded that leave ought be granted.

The application for leave to appeal against sentence

64. As set out above, there are two challenges to the penalties imposed: parity and manifest excess. As an appeal on the ground of parity requires the plaintiffs to accept that the sentence is otherwise correct, it is convenient to address the ground of manifest excess first.

Alleged manifest excess

65. Mr Singleton argued that the plaintiffs were well-motivated, did no material harm and only nominally interrupted Mr Stone’s business, which was effectively terminated three days later by the RSPCA. He contended that they were not, as her Honour found, “true vigilantes” and attempted neither to punish nor restrain Mr Stone and merely wished to rescue the chickens. I do not find this analysis helpful. The expression “vigilante” is defined in the Macquarie Dictionary as “a private citizen who, usually as one of a group of such citizens, assumes the role of guardian of society in maintaining law and order, punishing wrongdoers, etc”. Although the plaintiffs did not “punish” Mr Stone in any direct sense by, for example, inflicting physical violence, they trespassed on his land and interrupted his business and tried to remove his chickens. They purported to do what they believed the RSPCA (being the authorised body for acting in these circumstances) ought to have done because they considered that the RSPCA was not sufficiently effective to prevent ongoing cruelty to the chickens. Her Honour’s finding that their conduct was that of vigilantes was not only open but correct.

66. Whether a sentence is manifestly excessive is a conclusion and does not depend on the establishment of patent error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. In order to make out the ground of manifest excess, the plaintiffs are required to establish that the sentence imposed is unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). Sentencing judges “are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”: Markarian at [27].

67. The fine imposed by her Honour represented 27% of the maximum. It reflected her Honour’s assessment of the objective seriousness of the offence as being serious but not of the highest seriousness. I am not persuaded that the sentence imposed on each of the plaintiffs was either unreasonable or unjust. It was open to her Honour in the exercise of her discretion to impose a fine on each of the plaintiffs in the sum of $1,500, having regard to all objective and subjective considerations, including that each of the plaintiffs was regarded as a person of good character.

Parity

68. Mr Singleton submitted that, although each of the plaintiffs had “equal involvement” in their common offence, the Court below erred by imposing the same fine on each of them without regard to the differences in their financial capacity to pay. The capacity to pay was the only subjective circumstance on which he relied in support of the parity ground. He submitted, in writing:

“The fact that the Local Court reduced what it otherwise considered would have been the appropriate fine does not overcome the error involved in imposing the same penalty on everyone regardless of their different circumstances.”

69. Mr Singleton accepted in oral submissions that “if the magistrate reduced the penalty of the wealthier, then nobody was actually disadvantaged.”

70. Ms Caldwell conceded in her written submissions that the Court below had erred in not complying with s 6 of the Fines Act 1996 (NSW) which relevantly requires a court, when exercising a discretion to fix the amount of any fine, to consider “such information regarding the means of the accused as is reasonably and practicably available to the court for consideration”. Mr Singleton did not rely on this as amounting to error.

71. I am not satisfied that the concession was correctly made. Her Honour took into account the information she had been given by Mr Singleton about the plaintiffs’ respective capacities to pay a fine. It is plain from her Honour’s reasons that, in fixing the amount of the penalty, the magistrate had regard to the circumstance that some of the offenders had limited means to pay the fine. Her Honour chose to reduce the fine from what she considered would otherwise have been appropriate (a fine in the order of $2,000-$2,500) to take account of the limited means of some of the plaintiffs.

72. The parity principle was summarised by Dawson J (Wilson J agreeing) in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 as follows at 623:

“There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for but justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of a grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.”

73. In the present case, the only basis for the allegation of disparity was the financial circumstances of each offender. As referred to above, it was accepted the involvement of each was the same. It is important to recall that none of the plaintiffs adduced evidence as to his or her financial means. There was no evidence of the particular means of any given plaintiff beyond unquantified descriptions given by Mr Singleton from the bar table. Thus, her Honour was not in a position to determine what, if any, hardship would be suffered by any plaintiff by a fine of the order imposed.

74. It can be assumed that sentences will affect people differently. For example, a six year sentence of imprisonment imposed on six persons who were equally involved in an armed robbery might be experienced differently by the 45-year old participant than the 25-year old participant. Similarly, the effect of a fine of $1,500 might be almost immaterial to someone who has a good income and yet impose substantial hardship on someone who is unemployed and plagued by debt. A sentencing judge must take account of relevant matters known to the court when sentencing: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [23]-[24] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

75. What her Honour had been told was that the plaintiffs had different financial means but were each of good character and were equally involved. Her Honour was entitled to consider, in the absence of evidence to the contrary, that a fine of $1,500 was appropriate, even for those of limited financial means. By effectively discounting the fine below what her Honour considered appropriate, her Honour appears to have given greater weight to imposing the same penalty for the same conduct than to the capacity of each to pay. This was a choice which was open to her Honour in the exercise of the sentencing discretion and does not result in any disparity in the sentences imposed.

76. I note for completeness that Mr Singleton submitted that, if error were found, he would rely on the successful appeal on sentence of one of the co-offenders, Danesh Uthaiyakumar, who was re-sentenced by the District Court which quashed the conviction and the fine and released him pursuant to a conditional release order pursuant to s 9(1)(b) of the Crimes (Sentencing Procedure) Act. Mr Singleton confirmed that he did not rely on this matter as being relevant on parity per se, but only if error were otherwise established: cf. Eakin v R [2020] NSWCCA 294 (Rothman and Price JJ, Basten JA contra). In any event, I do not discern any “marked disparity” between a conviction with a fine of $1,500 and a conditional release order with no conviction recorded. Had this matter been the only matter in issue, I would have refused leave.

Whether leave ought be granted in respect of sentence

77. I have considered each of the grounds in as much depth as I would have done had leave been granted. The prosecutor does not oppose leave. In these circumstances, I am persuaded that leave ought be granted although I am not persuaded that there was any arguable error in the sentence imposed by the Court below.

Costs

78. This Court has held that it has power to order costs in proceedings under Part 5 of the CAR Act by a combination of s 23 of the Supreme Court Act 1970 (NSW) and by necessary implication from ss 55 and 72 of the CAR Act: Cunningham v Cunningham (No 2) [2012] NSWSC 954 at [18] (Button J); Turner v Wheeler (No 2) [2016] NSWSC 431 at [11] (Campbell J) and Sayer-Jones v Director of Public Prosecutions (No 2) [2019] NSWSC 1786 at [27] (Adamson J).

79. The prosecutor seeks an order for costs. Mr Singleton accepted that the successful party would be entitled to costs. However, he submitted that the questions raised by the plaintiffs were matters of general public interest and that the plaintiffs were “not pursuing a personal interest other than their own convictions”. He contended that, in those circumstances, if the plaintiffs were unsuccessful, there should be no order as to costs. Although Ms Caldwell accepted that the submissions were addressed to the limits of the defence of necessity, she contended that the plaintiffs’ appeal was “entirely unmeritorious” and that, in these circumstances, the plaintiffs ought pay the prosecutor’s costs of the proceedings.

80. I accept Ms Caldwell’s description of the application for leave to appeal. While there may have been some public interest in the topic of the defence of necessity, on no view of the facts in this case, as agreed or as found by the magistrate, could it ever have justified the plaintiffs’ conduct. Further, the plaintiffs took the proceedings to have their own convictions and penalties quashed. In these circumstances, I am persuaded that they ought be ordered to pay the prosecutor’s costs of the proceedings.

Orders

81. For the reasons given above, I make the following orders:

1. Grant leave to appeal against conviction and sentence.

2. Dismiss the appeal.

3. Order the plaintiffs to pay the defendant’s costs of the proceedings.

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Decision last updated: 09 December 2020