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Court of Criminal Appeal 1 March 2024

Kershaw v R

[2024] NSWCCA 27

Public order & justice offences
CRIME APPEAL AGAINST CONVICTION RESISTING OFFICERS EXECUTING DUTY APPELLANT PLEADED GUILTY APPEAL AGAINST SENTENCE

Citation: Kershaw v R [2024] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 1 March 2024
Judges: Leeming JA (principal judgment); Wright J and Wilson J (agreeing)

Background

Late on the evening of 16 June 2020, the appellant attended a suburban property at Buff Point while heavily intoxicated (a blood alcohol level later measured at 0.25 mg/l). He became violent toward the male occupant, smashing walls, a door, and windows. Two triple-0 calls were made, and police attended in two separate pairs, arriving approximately four minutes apart.

The first pair, Senior Constables Kinghorne and Dekort, arrived at around 10:25 pm. An immediate struggle broke out. The appellant choked Senior Constable Dekort by the neck for approximately 45 seconds, pulled her hair, punched Senior Constable Kinghorne in the face and body, and grabbed his crotch with force. Constables Dimond and Duckett arrived at around 10:29 pm to find the appellant still actively struggling with the first two officers. The appellant continued to resist even after being handcuffed and required sedation by paramedics before being taken to hospital.

At trial, the primary judge acquitted the appellant of two charges of resisting arrest based on his resistance to Senior Constables Kinghorne and Dekort. The acquittals rested on the finding that the arrest by those officers was unlawful because the required reasons were not stated as required by s 202 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The appellant had, however, already pleaded guilty to two separate charges under (former) s 58 of the Crimes Act 1900 (NSW) of resisting officers in the execution of duty, based on his resistance to Constables Dimond and Duckett. He sought to withdraw those pleas on appeal, arguing the unlawfulness of the initial arrest infected the later charges as well.

  • Whether the appellant should be permitted to withdraw his guilty pleas to the two counts of resisting officers in the execution of duty (relating to Constables Dimond and Duckett).
  • Whether the unlawfulness of the arrest attempted by the first two officers necessarily rendered Constables Dimond and Duckett's conduct also unlawful, so that the charges based on resistance to them could not stand.
  • Alternatively, whether one of the two convictions should be set aside on the basis that both were founded on identical conduct (duplicity).
  • Whether the sentencing judge erred by failing to treat the unlawfulness of the initial arrest as a mitigating factor, or by failing to have adequate regard to the appellant's cognitive deficits and other subjective circumstances.

Decision

Conviction appeal dismissed. The Court of Criminal Appeal held that the unlawfulness of the arrest by Senior Constables Kinghorne and Dekort did not automatically render the conduct of Constables Dimond and Duckett unlawful. By the time those officers arrived, the appellant had already assaulted the first two officers and was continuing to struggle with them. Constables Dimond and Duckett arrived at the scene to find an ongoing violent confrontation, which independently grounded their entitlement to intervene. The pleas were entered on proper legal advice (including a recorded confirmation of instructions), and the Court found no miscarriage of justice in maintaining them.

The Court also rejected the duplicity argument. Constables Dimond and Duckett were separate officers engaged in separate conduct: Constable Duckett assisted in handcuffing the appellant, while Constable Dimond searched and restrained him thereafter. The charges were not based on identical conduct.

Sentence appeal allowed. The sentencing judge erred in three respects: by failing to treat the unlawfulness of the initial arrest as a relevant, albeit not decisive, mitigating factor; by failing to engage adequately with evidence of the appellant's cognitive deficits; and by insufficient attention to other aspects of the subjective case. The Court re-exercised the sentencing discretion and reduced the aggregate sentence.

The Court noted the serious nature of the conduct throughout and the importance of general deterrence for assaults on police officers carrying out their duties. Wilson J added a specific observation commending the bravery and sense of duty shown by all four officers on the night.

Orders Made

  • Leave to appeal granted on grounds 1, 2, 4, 5, and 6; refused on ground 3.
  • Appeal against conviction on grounds 1 and 2 dismissed.
  • Appeal against sentence allowed.
  • Aggregate sentence of 6 years imprisonment (non-parole period 4 years) imposed by the District Court on 27 October 2022 quashed.
  • In lieu, the appellant sentenced to an aggregate term of 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months, commencing 17 October 2021 and expiring 16 April 2025, with the balance of term expiring 16 April 2027.
  • Indicative sentences set as follows: intimidation of Mr Jerome (count 1): 18 months; assault Mr Jerome (count 2): 12 months; assault occasioning actual bodily harm, Senior Constable Dekort (count 4): 32 months; assault occasioning actual bodily harm, Senior Constable Kinghorne (count 6): 28 months; destroy/damage property: 4 months; resist officer in execution of duty (Constable Duckett): 9 months; resist officer in execution of duty (Constable Dimond): 9 months.

Key Takeaways

  • Where later-arriving officers encounter an ongoing violent struggle, the lawfulness of their intervention is assessed by reference to what they found when they arrived, not solely by reference to whether the initial arrest by earlier officers was lawful. An unlawful arrest by the first officers does not automatically taint charges arising from resistance to officers who arrived independently and later.
  • A guilty plea entered with the benefit of legal advice, where instructions are recorded and confirmed, will not readily be set aside on appeal. The Court of Criminal Appeal emphasised the absence of any miscarriage of justice where both solicitor and counsel had advised on the plea and the appellant personally confirmed his instructions.
  • Under s 202 of LEPRA, failure to state the reason for an arrest renders it unlawful. However, the consequences of that unlawfulness are confined to charges directly dependent on the lawfulness of that particular arrest and do not automatically extend to associated charges involving different officers acting on an independent basis.
  • In sentencing for assaults on police officers, general deterrence carries significant weight. The Court re-sentenced the appellant having regard to the serious nature of the violence captured on body-worn camera, while also giving proper weight to the unlawfulness of the initial arrest and the appellant's cognitive deficits as mitigating factors.
  • Sentencing courts must engage with all relevant subjective circumstances, including evidence of cognitive impairment, even where that impairment does not displace the need for general deterrence. Failure to do so may constitute error warranting intervention on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), former s 58 (resisting officers in the execution of duty)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 202 (obligation to state reasons for arrest)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 53A
- Criminal Appeal Act 1912 (NSW), ss 5, 5AA, 5AD, 6
- Criminal Procedure Act 1986 (NSW), ss 132, 133, 166

Cases
- Betts v The Queen (2016) 258 CLR 420
- Brown v West (1990) 169 CLR 195
- Coleman v Power (2004) 220 CLR 1
- Dacich v Director of Public Prosecutions (NSW) [2021] NSWCA 275
- DL v The Queen (2018) 265 CLR 215
- Garcia-Godos v R; MH v R [2023] NSWCCA 145
- Johnson v Miller (1937) 59 CLR 467
- Kentwell v The Queen (2014) 252 CLR 601
- Kuru v State of New South Wales (2008) 236 CLR 1
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- Parker v