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District Court 15 March 2023

Glover v R; Coco v R

[2023] NSWDC 322

Public order & justice offences
SENTENCE

Citation: Glover v R; Coco v R [2023] NSWDC 322
Court: District Court of New South Wales
Date: 15 March 2023
Judge(s): M L Williams SC DCJ

Background

On 30 April 2022, two climate protesters drove a truck onto the southbound lane of the Cahill Expressway near a pylon on the Sydney Harbour Bridge. Both got out, climbed onto the roof of the truck, and discharged flares that emitted orange smoke. The disruption lasted approximately 28 minutes. Each was subsequently charged with multiple offences and sentenced in the Local Court.

One appellant, a 61-year-old man with no prior convictions, had served extensively with the Rural Fire Service and pleaded guilty to entering the Sydney Harbour Bridge to disrupt vehicles. He was sentenced by Magistrate Reiss to a Community Corrections Order of 18 months and a $3,000 fine. The other appellant, a 31-year-old woman, received an aggregate term of 15 months' imprisonment with a non-parole period of eight months across multiple sequences, including charges of disrupting traffic, possessing a bright light signal in a public place, and resisting police.

Both appellants appealed their sentences to the District Court on severity grounds. One appellant also pursued a conviction appeal in respect of one charge, which the Crown conceded. A significant complication in the second appellant's case was that her Local Court sentence had been infected by a false factual assertion: police had incorrectly claimed the protest had impeded an ambulance responding to an emergency with lights and sirens activated. The Crown abandoned that assertion on appeal.

  • Whether the sentencing Magistrate erred in the first appellant's case by imposing a sentence that was disproportionate to the objective seriousness of the offence and the relevant subjective circumstances
  • Whether the first appellant's sentence should be replaced with a non-conviction order under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the second appellant's sentence was infected by a false fact (the ambulance allegation) and required re-sentencing
  • Whether the objective seriousness of the offending was correctly assessed, including the extent to which traffic was actually blocked
  • Whether the second appellant's sentence crossed the s 5 threshold requiring a term of imprisonment
  • Whether the second appellant's conviction on one charge (possessing a bright light signal in a public place, Sequence 3) should be set aside

Decision

First appellant (Mr Glover): Williams SC DCJ upheld the severity appeal and set aside the conviction and sentence. The court found that the offending, while deliberate and disruptive, did not establish that traffic was completely blocked or that the number of affected vehicles was as serious as the Crown submitted. Video evidence showed traffic continuing to move in nearby lanes in a manner not dissimilar to ordinary peak-hour conditions. The court accepted the characterisation of the objective seriousness as not exceeding the mid-range, contrary to the Crown's position.

On the question of an order without conviction, the court applied the reasoning from R v Mauger [2012] NSWCCA 51. His Honour found that the social and criminological consequences of recording a conviction would fall heavily on the appellant, who faced termination from the Rural Fire Service, while the benefit to the community from a conviction was negligible. A conditional release order without conviction for 12 months was substituted.

Second appellant (Ms Coco): The court accepted that the Local Court sentence was built in part upon a false fact, namely the ambulance allegation, which had since been abandoned by the Crown. That false fact had also infected the sentencing of a co-offender in separate proceedings. The court proceeded to re-sentence on the corrected factual basis.

The court declined to find that the s 5 threshold for a term of imprisonment had been crossed. Ms Coco's appeals on Sequences 1, 7, and 4 were upheld. She received a 12-month conditional release order on Sequence 1 (with a condition to continue psychological treatment), and convictions recorded with no further penalty on Sequences 7 and 4. The Crown conceded the conviction appeal on Sequence 3, which was set aside entirely. The Sequence 6 severity appeal was withdrawn by the appellant.

Orders Made

Mr Glover:
- Severity appeal upheld; conviction and sentence orders set aside
- Offence found proven (including Form 1 matters); defendant discharged under a conditional release order without conviction for 12 months (s 10(1)(b), Crimes (Sentencing Procedure) Act 1999), with standard conditions only

Ms Coco:
- Severity appeals on Sequences 1, 7, and 4 upheld; sentence orders set aside; convictions confirmed
- Sequence 1: Conditional release order for 12 months (s 9(1)(a)) with standard conditions and a requirement to continue psychological treatment
- Sequence 7: Convicted, no further penalty (s 10A)
- Sequence 4: Convicted, no further penalty (s 10A)
- Sequence 6: Severity appeal not pressed; Magistrate's orders confirmed
- Sequence 3: Leave granted to file conviction appeal; Crown did not oppose; conviction appeal upheld; conviction and other orders of the Magistrate set aside

Key Takeaways

  • A sentence infected by a false factual assertion requires re-sentencing on the corrected facts, even where that false fact originated in police material and had already been relied upon in related proceedings against co-offenders.

  • Under R v Mauger, a non-conviction order under s 10 of the Crimes (Sentencing Procedure) Act 1999 may be appropriate where the personal consequences of a conviction significantly outweigh any deterrent or denunciatory benefit to the community, particularly for a first-time offender with strong community ties.

  • Objective seriousness is not automatically elevated merely because an offence involved deliberate disruption to a major public thoroughfare. The court here found the Crown's factual assertions about the extent of traffic disruption were not established on the evidence, and video footage was treated as the more reliable guide.

  • Sentencing courts must distinguish between actual custody and bail conditions so restrictive as to amount to quasi-custody. The District Court acknowledged approximately 84 days of quasi-custody conditions in the second appellant's case as a relevant sentencing factor.

  • The abandonment by the Crown of a charge (Sequence 3 regarding possession of a bright light signal in a public place) resulted in that conviction being set aside entirely on appeal, illustrating the importance of the Crown's ongoing assessment of the evidentiary and legal basis for each count carried into sentence proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93FB, 546C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 9, 10, 10A
- Explosive Regulation 2013 (NSW), s 56
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 199(1)
- Roads Act 1993 (NSW), s 144G

Cases:
- KM v R [2023] NSWCCA 10 (assessment of objective seriousness)
- R v Mauger [2012] NSWCCA 51 (consequences of non-conviction orders under s 10)