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District Court 26 March 2021

Antaw v R; Kitson v R; Lee v R (No 2)

[2021] NSWDC 821

Public order & justice offences
R EFUSE/FAIL TO COMPLY WITH DIRECTION S 10 FINE WHETHER TRIVIAL WHETHER SERIOUS RELEVANCE OF ANTECEDENTS

Citation: Antaw v R; Kitson v R; Lee v R (No 2) [2021] NSWDC 821
Court: District Court of New South Wales
Date: 26 March 2021
Judge: P Taylor SC DCJ

Background

Three appellants, Roy Antaw, Felicity Kitson, and Fiona Lee, each participated in a public assembly that blocked a roadway. Police directed them to move, and each refused. They were convicted in the Local Court of failing to comply with a police direction under s 199 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and fined $150 each.

All three appealed both conviction and sentence to the District Court. The conviction appeals were dismissed in a separate judgment. This decision dealt only with their sentence appeals, each of which sought an order under s 10 of the Crimes (Sentencing Procedure) Act 1999, which would result in a finding of guilt without a recorded conviction.

The maximum penalty for the offence is two penalty units (currently $220), reflecting its position at the lower end of the criminal spectrum. The Crown did not oppose the s 10 applications.

  • Whether each appellant's offence was of a "trivial nature" within the meaning of s 10 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the circumstances, including character, antecedents, absence of remorse, and any extenuating factors, warranted a s 10 dismissal for each appellant
  • Whether prior involvement in a lawful public assembly, or personal circumstances motivating that protest, could serve as a mitigating or extenuating factor in relation to a subsequent refusal to follow a lawful police direction
  • Whether Ms Lee's prior criminal history and earlier s 10 order distinguished her case from those of her co-appellants

Decision

The court found that the offence was neither trivial nor serious. A conscious refusal to comply with a lawful police direction to clear a roadway did not amount to a trivial offence, particularly where some degree of persistence was inherent in constituting the offence under LEPRA. However, the refusals were brief, the area was a relatively quiet cul-de-sac, and obstruction to traffic was not great.

The court confirmed that an offence need not be characterised as trivial for a s 10 order to be available. The absence of remorse or contrition was noted as a relevant factor, though the court made clear that appellants were not to be penalised for maintaining their appeals. The court assessed each appellant individually, applying the deliberative process required by s 10.

For Mr Antaw and Ms Kitson, both had no prior criminal history and were accepted as being of good character. Despite the absence of contrition, the court was persuaded that their good character and the lower seriousness of the offence, as first offenders, warranted dismissal of the charges under s 10.

Ms Lee's position differed. She had a 2010 fine for entering enclosed land and, significantly, had received a s 10 order as recently as March 2020 for wilfully obstructing the free passage of a person, vehicle, or vessel. The court found that her personal circumstances, including losing her home in the 2019/2020 bushfires, may have motivated her lawful protest, but did not constitute an extenuating factor for her subsequent refusal to follow a lawful police direction. With no first-offence status, a directly analogous prior s 10 order, and no evidence of remorse, the court refused her application and confirmed the $150 fine.

Orders Made

  • Mr Antaw: Sentence appeal upheld; offence found proved but charge dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction.
  • Ms Kitson: Sentence appeal upheld; offence found proved but charge dismissed under s 10 without proceeding to conviction.
  • Ms Lee: Section 10 application refused; sentence appeal dismissed; convicted and fined $150.

Key Takeaways

  • Triviality under s 10 must be assessed by reference to the actual conduct and circumstances of the offence, not merely by the maximum penalty prescribed by statute, as confirmed in Walden v Hensler (1987) 163 CLR 561.
  • A s 10 order does not require the offence to be characterised as trivial; courts engage in a broader deliberative process weighing character, antecedents, extenuating circumstances, and other relevant matters.
  • Prior receipt of a s 10 order for a similar obstructing offence was a decisive factor against Ms Lee; the availability of a second chance is more readily associated with genuinely first-time offenders.
  • Participation in a preceding lawful public assembly, and the personal circumstances that motivated it, do not operate as extenuating factors when an offender subsequently refuses to comply with a lawful police direction.
  • Excessive use of s 10 orders risks undermining public confidence in the administration of justice; the provision functions as a safety valve for cases where punishment is genuinely disproportionate, not as a general alternative to conviction for protest-related conduct.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10, 17
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 199

Cases
- Antaw v R; Kitson v R; Lee v R [2021] NSWDC 820
- Chin v Ryde City Council [2004] NSWCCA 167
- David Morse (Office of State Revenue) v Chan and Anor [2010] NSWSC 1290
- Hoffenberg v The District Court of New South Wales [2010] NSWCA 142
- R v Ingrassia (1997) 41 NSWLR 447
- R v Mauger [2012] NSWCCA 51
- R v Paris [2001] NSWCCA 83
- R v Piccin (No 2) [2001] NSWCCA 323
- Regina v Van Nam Nguyen [2002] NSWCCA 183
- Walden v Hensler (1987) 163 CLR 561