Wenny Theresia v Director of Public Prosecutions

[2007] NSWDC 237

CITATION:	Wenny Theresia v DPP [2007] NSWDC 237
HEARING DATE(S):	2 November 2007
JUDGMENT DATE:	2 November 2007
EX TEMPORE JUDGMENT DATE:	21 October 2011
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Appeal upheld.; Finding of guilt confirm. ; Conviction set aside.
CATCHWORDS:	Criminal Law - District Court Severity Appeal - s.10 discharge sought - charge arises out of protest action - appellant member of protest group - group protests against loading of coal for export - entry to premises limited to authorized person - protest group enters premises - group splits into smaller groups - coal recaimers and stackers targeted - facility forced to close and work ceases for half a day - appellant with others targets specific coal relcaimer - refused police direction - appellant charged - guilty plea - studying Arts/Law - concerned conviction would effect her future - criteria for s.10 discharged discussed - extenuating circumstances - offender fails to understand nature and consequences of conviction.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act
PARTIES:	Wenny Theresia Regina
FILE NUMBER(S):	07/32/0669
SOLICITORS:	Appellant: Mr Anthony Respondent: Ms Irwin

JUDGMENT

1 HIS HONOUR: A judge’s task is to uphold the rule of law without fear or favour. That is a promise that I made at my swearing in. It is an obligation I am required to keep. Nothing I say should be seen as taking one side or the other in respect of the protest that was launched and in which this appellant took part. But there are a number of things that can be noted.

2 There is a right of free speech. The exercise of that right may take many lawful forms, such as the march across the Sydney Harbour Bridge for the Stolen Generation, such as march through Sydney streets against the war in Iraq, the march through the Melbourne streets against the war in Vietnam.

3 Where the exercise of free speech is unlawful then the Court’s task is to uphold the law, however the individual member may feel about the cause that he or she became involved in. Men such as Mandela and Ghandi have gone to gaol for protesting but they do not deny their protesting was unlawful. It was the price that they were prepared to pay. Sometimes the law is a bad law, such as Apartheid. Nonetheless, a judge is required to uphold the law that parliament passes.

4 The facts in this case are these. At about 8am on Tuesday 4 September 2007 eleven members of a protest group known as the Solar Generation entered the grounds of Port Waratah Coal Services, which is apparently situated in the Carrington area. This service is one of the main suppliers and loaders of coal export within Australia. The export of coal in Australia is one of the major commodities that this country exports. It is usually black or brown coal rather than clean coal. There are a number of people who feel very strongly about the quality and the nature of the coal that is exported.

5 This property where the export coal loader was, is surrounded by a two metre high cyclone fencing with barbwire on top of it. There are a number of train lines running in and around the perimeter of those premises. Entry to the premises is by authorised personnel only via a secured main entry point in Elizabeth Street, Carrington.

6 Once the eleven persons entered the secured grounds, they split into groups. They made their way to a number of the coal reclaimers and stackers, it is said, thereby causing closure of the entire coal loading facility for a period of four hours.

7 Due to the actions of those persons, a whole security check of the premises had to be carried out prior to the commencement of any operations causing major disruption and loss of production to the company.

8 Once inside the ground three persons, including this appellant Wenny Theresia, made their way to the number four-coal reclaimer. That reclaimer recovers coal from a stockpile, placing it onto a conveyer belt, which then transports the coal to a required loader. At the reclaimer the three protesters made their way up a number of ladders to the top of the reclaimer.

9 At this point, the other two protesters secured themselves to a fixed part of the machine. In so doing, they used a piece of six inch steel pipe, which had been welded at a right angle. Those two persons, not this appellant, used a piece of wire with self-closing clip and once their hands were inside a pipe, they connected the clips.

10 At this point, this appellant was playing a supporting role of spokesman. Once police approached, all three were informed that they were all under arrest for offences; with various legal safeguards in respect of arrested people, it is said, being adhered to.

11 Police thereafter sought to negotiate with the pair to release themselves. They would not do that. Any criminality associated with that conduct couldn’t be sheeted home to this appellant.

12 Police again tried to inform the activists that they had accomplished what they set out to do. The rationale of the police was that the coal loader had been shut down. It would be appreciated if they would release themselves, which they would not do.

13 Yet a third time, the two others were asked to release themselves. They did and were escorted by police to a waiting vehicle. All three were conveyed back to Newcastle and were charged.

14 By her plea and by her acceptance of the Crown case, this appellant concedes that her conduct was unlawful. I am satisfied, and as I say it would appear she is satisfied, the law has been broken.

15 When sentencing someone for an offence, the Court is punishing not only for the offence but is punishing the offender for it. Each offender standing before a court may have features about his or her background that suggests that a more or less sentencing option is appropriate. The penalty being appealed against here significantly is both the conviction and the fine.

16 This appellant’s background is probably best, in the short course of an appeal such as this, reviewed by a reference that was prepared in circumstances where this appellant was probably leaving Year Twelve in November of 2002. The report is from the Sydney Girls High School, one of the schools regarded as an elite school in New South Wales.

17 “Wenny was elected by her peers to be school captain”, says this report. “In this role she demonstrated strong leadership skills and an ability to work independently and to initiate and implement new ideas. Wenny has been a diligent, motivated student, always conscientious and reliable. Her work has been of a high standard and academic attainment most rewarding”. She has always been most punctual. She has made some exemplary academic achievements, was awarded certificates in excellence for achieving equal second place in Year Seven, third place in Year Eight, certificates of merit for PD, Health, PE, Music, Visual Arts, Design and Technology, English, Latin, Visual Arts, Mathematics and History, over a period of three years, some of the certificates repeated.

18 She participated in the Australian Schools Mathematic Competition, National Science competitions, Australian Schools English competitions, AMP Economic competitions gaining high distinctions, distinctions and credits. She was awarded gold medals in 2001 and 2002 National Latin examinations. She achieved bronze and silver awards and currently (that was in 2002), completing the gold award in the Duke of Edinburgh Award Scheme; attended a Uni summit 2001 on politics and power in the Great Southern Land at the University Melbourne; spoke on behalf of her school at the Pan Pacific and South Asian Woman’s Association of Australia in a seminar which was called Showcasing Volunteers; took part in the Mock Trial Program and other programs; contributed to the Senior Wind Ensemble and School Orchestra; was a participant in that school’s music tour of New Zealand; had been a member of the debating team; achieved gold, silver and bronze medallions in the Student Recognition Scheme; had been involved in fundraising activities with selected school charities including Daffodil Day, Legacy, the 40 Hour Famine, White Rose Day, Community Aid Abroad, Red Cross, Amnesty International.

19 She has continued her studies and is studying Arts/Law. She recognises that her conduct was unlawful. She that what was motivating her at the time was that it was urgent for her to express her feelings about climate change and how it would affect my future. She now says that she would look more carefully at whether she broke the law when she did.

20 There are occasions when protesters would need to break the law it seems to me, if a law is unjust and again, I come back to the Apartheid law, but this does not appear to me to be one of those.

21 Even so, it seems to me that if there is a benefit that can be obtained, and that she is entitled to it, it would be churlish of a court to deny it simply to establish that the Court’s role is to guarantee the rule of law. It seems to me that also involved in guaranteeing the rule of law is applying such benefits as an appellant is entitled to.

22 Section 10 of the Crimes (Sentencing Procedure) Act provides that without proceeding to a conviction a court may find a person guilty of an offence and may make one of the following orders; an order directing that the relevant charge be dismissed; an order discharging the person on condition that that person enter into a bond for a term not exceeding two years. So far as is relevant, that is all I need to mention there.

23 In deciding whether to make an order referred to in sub-section (1) the Court is to have regard to the following factors: the person’s character, antecedents, age, health and mental conditions. I have reviewed those except of course to point out that her age is twenty-two. She has accomplished much. Her motives in the commission of this offence were pure, it was her method that was wrong.

24 The trivial nature of the offence, there is suggestion that this workplace was shutdown for four hours but there is no other evidence of damage and whether there was a capacity to recover from the four hour shutdown has not been explored in evidence by either side.

25 The extenuating circumstances in which the offence was committed, I do not see any of them either way, passion for an idea is not an extenuating circumstance; and any other matter that the Court thinks proper.

26 One of the matters that I do think proper is that a young person who perhaps does not understand fully the nature of a conviction and who has as I say, entered into an act for pure motives although it was the wrong act, ought to be offered at least one opportunity to advance the rest of his or her life without a conviction.

27 I do not criticise the learned magistrate one iota. In my view, and in fact when I first looked at this matter, I thought the magistrate had treated this appellant respectfully and properly. I still hold that view. But I am allowed to exercise my own discretion differently from the magistrate and it can still be a proper result.

28 In all the circumstances what I propose to do is to find the appellant guilty of the offence, to discharge her without conviction and hopefully the experience will have been something that will add to her judgment in future. Formal orders are:

• The appeal is upheld.
• The finding of guilt is confirmed.
• The conviction is set aside.

29 She is discharged without conviction.