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Lopes v Cook

Lopes v Cook

Case [2020] NSWSC 1776 9 December 2020

Appeal

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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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):

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 Lopes v Cook

Details

AGLC: Lopes v Cook [2020] NSWSC 1776
Case: [2020] NSWSC 1776
Decision Date: 09 December 2020

CaseChat Overview and Summary

The appeal before the court involved two defendants, Lopes and Cook, who were convicted of aggravated unlawful entry on enclosed lands. They challenged both their convictions and the sentences imposed by the lower court, arguing that the magistrate erred in certain respects and that the sentences were manifestly excessive. The appeal against the sentences also questioned the disparity between the sentences of co-offenders, despite the same penalty being imposed on all, which was attributed to the differing financial circumstances of the offenders.

The legal issues that arose in this appeal centred around the adequacy of the defence of necessity and the proportionality of the sentences imposed. The defendants argued that the magistrate incorrectly assessed the defence of necessity and failed to consider mitigating factors in sentencing. They also contended that the sentences were manifestly excessive and that there was an unjust disparity between their sentences and those of their co-offenders, which was said to be due to their differing financial situations.

In its decision, the court found that the magistrate had not erred in rejecting the defence of necessity, as the defendants had not demonstrated a reasonable belief that entry was necessary to prevent a serious crime. Regarding sentencing, the court considered that the sentences were not manifestly excessive. It also held that the alleged disparity in sentences, based on differing financial circumstances, was not a valid ground for appeal as the same penalty was applied to all offenders. The court concluded that the sentences were appropriate given the nature of the offences and the need to maintain the deterrent effect of the law.

The appeal was dismissed, and the convictions and sentences of the lower court were upheld. The court did not alter the sentences or convictions, reaffirming the magistrate's decisions as correct.

Orders