Tricia Jane Brock and Louise Perry Forrester v SA Police Nos. SCGRG 93/1356, SCGRG 93/1357 Judgment No. 4123 Number of Pages 4 Criminal Law and Procedure

[1993] SASC 4123

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law and procedure - Appeals against recording of convictions - trespass - appellants argued that magistrate should have exercised discretion under Crimes Acts19B - appellants of good character with no prior antecedents - engaged in deliberate course of conduct - offences committed not trivial in nature - appellants unable to demonstrate error in exercise of sentencing discretion. Crimes Act (Cwth) s19B. Watchman v Black (1990) 156 LSJS 28 and Gunn v Thompson (1990) 54 SASR 1, applied.

HRNG ADELAIDE, 18 August 1993 #DATE 25:8:1993
Counsel for appellants:     Mr L Davis
Solicitors for appellants: Luke Davis
Counsel for respondent:     Mr M Loftus
Solicitors for respondent: Director of Public
   Prosecutions (Cwlth)

ORDER
Appeals dismissed.

JUDGE1 OLSSON J These are two related appeals against penalty. They arise out of the same general incident, involving the same general type of conduct and involve virtually identical issues. 2. Whilst it is trite to say that each must be considered on its own individual merits, the features relating to the individual appeals are so similar that they may fairly be discussed together. 3. The appellants are both young women of good background, high personal achievement and impeccable prior character. Ms Brock is a student at Flinders University and is aged 24 years. She also engages in part time employment. Ms Forrester is a student at the University of South Australia and is aged upwards of 21 years. Both young ladies obviously have a deep interest in community issues. 4. On 11 April 1993 both appellants were present at and joined in a protest demonstration at Narrungar. That protest extended over two days, of which 11 April was the second. They were two of an overall crowd of some 700 persons who initially gathered outside of a boundary fence erected across the access road to mark the boundary of and deny access to Commonwealth property known as the Nurrangar Prohibited Area. 5. It is not in dispute that, at all material times, the appellants well appreciated that the land on the far side of the fence had duly been declared a Commonwealth prohibited area. Indeed there were some 180 police and protective services officers present to prevent unauthorised entry. An Australian Protective Services Officer, equipped with a loud hailer walked up and down the relevant area, warning the demonstrators that, if they crossed the fence, they would be trespassing and would be arrested. Warning signs had also been erected on the fence. 6. This had also been the situation on the preceding day, when 70 persons had climbed or breached the fence and had been arrested within sight of the general body of protesters. It is to be inferred that the two appellants were well aware of that situation. 7. At about 11.00am on 11 April 1993 the protesters gathered at the fence and commenced a demonstration. Immediately after its conclusion a large number of persons, including the appellants, deliberately climbed or breached the fence and trespassed some distance on to the prohibited area. In all 185 arrests were made. The appellants were taken into custody, charged and then granted bail after several hours. 8. On each day not all protesters sought to trespass. The acts of trespass were really separate, deliberate acts on the part of a substantial number of individuals, which followed the conclusion of the main demonstration itself. They were clear acts of defiance of the legislation and the lawful authority of the police and protective services officers present. 9. It was put to the learned magistrate that, having regard to their excellent background and the fact that the acts of the appellants were really no more than acts of conscience, he ought to exercise his undoubted discretion, pursuant to section 19B of the Crimes Act, not to record a conviction against them. 10. He declined to accede to that proposition, pointing out that, whilst the statutory pre-conditions to the exercise of such a discretion had clearly been made out, the appellants, being highly intelligent persons, had made a calculated and deliberate decision to flout the law, well knowing what the likely consequences would be. It ill behove them - he said - to now suggest that, having done so, they should not suffer those consequences. 11. He recorded a conviction in each instance and imposed a modest fine. The present appeals are restricted to the issue of whether or not it was appropriate to record the convictions. 12. Fervent pleas have been advanced before me, as they were before the learned magistrate, concerning this question. It has been stressed that the convictions could well have a serious, adverse effect upon the future careers and travel options of the appellants, which would be disproportionate to the gravity of their offending - assertions from the bar table as to which there has been no substantial evidence and which the learned magistrate obviously did not accept. 13. I do not pause to recite the well known authorities bearing upon the approach of appellate courts to reviewing sentencing discretions. The ultimate fate of those appeals is necessarily commanded by the relevant facts and sentencing factors applicable to the particular circumstances, viewed in light of the other pertinent authorities discussed by me in Watchman v Black
(1990) 156 LSJS 28. 14. 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. 15. In so saying I by no means put to one side and ignore the excellent character of each of the appellants and the other significant mitigating or extenuating factors arising in relation to them. 16. However, like the learned magistrate, I cannot accept that these were offences of a trivial nature, as has been submitted. Having regard to the circumstances as I have outlined them and as was pointed out by Duggan J in Gunn v Thompson (1990) 54 SASR 1 at page 5, actions of this type are not mere simple trespasses. His characterisation in that case related to a similar situation which arose in 1989, but is equally pertinent to the matters now before me. As he there stressed:-
    "... the deliberate movement onto the property with knowledge
    of the signs stating that entry was prohibited meant that a
    confrontation (with the police) was inevitable and these
    circumstances provide the aggravation which would, if necessary,
    take her actions beyond a simple trespass. In all the
    circumstances, therefore, I am of the view that the appellant was
    properly convicted." 17. As I pointed out in Watchman v Black (supra):-
    "By their very nature, trespass cases must vary enormously
    in nature and potential seriousness and there would appear to me
    to be much more scope for a possible application of section 19B.
    It seems to me that, whilst any trespass situation cannot be
    viewed lightly and general deterrence aspects must be accorded due
    significance, the relative gravity of trespass offences must be
    assessed both against the background of the actual or potential
    risk flowing from them and also the circumstances which gave rise
    to the trespass." 18. Having considered all relevant circumstances and factors I am simply not able to conclude that what was done by the learned magistrate was outside of the spectrum of reasonable sentencing outcomes which naturally arose for consideration in this case. Whilst the ex tempore sentencing remarks expressed by the learned magistrate were brief and did not necessarily traverse all relevant areas of concern, I do not construe them as indicating any error or failure to take into account all relevant aspects and factors. 19. Each appeal must be dismissed.