Lopes v Cook

By summons filed on 11 December 2019, Ana Lopes, Peter Maresch, Charlize Reynierse, Catherine Smith, Maria Veira and Andrew Faulkner (the plaintiffs) appeal against their convictions for the offence of entering inclosed lands and, while there, interfering with a business, contrary to s 4B(1)(a) of the Inclosed Lands Protection Act 1901 (NSW) (the Act). In the alternative, the plaintiffs appeal from the sentences imposed. On 7 December 2020, I granted leave to the plaintiffs to file an amended summons which added a claim for relief, in the alternative, based on denial of procedural fairness.

In substance, the plaintiffs entered an inclosed farm, which included a shed that accommodated many egg-laying hens. They disrupted the business by seizing a few chickens and running away with them. They were arrested while still within the inclosed land. The only issue at the summary hearing was whether the plaintiffs’ acts were justified by the defence of necessity: the relevant necessity being the alleged need to save the chickens from ongoing cruelty.

The plaintiffs, for whom Mr Singleton appeared in the Court below and in this Court, seek to appeal as of right under s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) against their convictions and sentences and, in the alternative, seek leave to appeal under s 53 of the CAR Act against their sentences. The defendant, for whom Ms Caldwell appeared in this Court, was the prosecutor in the Court below (the prosecutor).

As the plaintiffs in the present proceedings were the defendants in the Court below and the defendant in the present proceedings was the prosecutor in the Court below, it is convenient to refer to the plaintiffs as the plaintiffs and the defendant as the prosecutor.

Section 52 of the CAR Act relevantly provides that any person who has been convicted or sentenced by the Local Court may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. Section 53 of the CAR Act relevantly provides that any person who has been convicted or sentenced by the Local Court may, with leave, appeal to this Court against the conviction or sentence on a ground that involves a question of fact, or a question of mixed law and fact.

At the time the offence was alleged to have been committed, s 4B of the Act relevantly provided:

The value of one penalty unit is prescribed in s 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The relevant value of one penalty unit is equal to $110. It follows that the maximum penalty was $5,500.

The substantial increase in the maximum penalty on and from 21 November 2019 (to a maximum fine of $22,000 and three years’ imprisonment) is not to be taken into account in the present case.

In the summons, the plaintiffs raise a single ground of appeal against conviction: that the Court below erred in failing to find that the prosecution had not rebutted the defence of necessity. As referred to above, in the amended summons, the plaintiffs contended, in the alternative, that the Court below denied natural justice by making findings contrary to the agreed facts without alerting the plaintiffs to that possibility. Mr Singleton contended that, had the magistrate alerted the plaintiffs to that possibility, they would have had the opportunity of giving evidence. For the reasons given below, I do not consider that this ground of appeal arises.

The plaintiffs raise two grounds of appeal against sentence: first, that the sentences were manifestly excessive; and, secondly, that the Court below erred by not taking into account the individual circumstances of each plaintiff.

The matter was heard by Keogh LCM on 25, 26, 27, 28 and 29 March 2019, 17, 18 and 19 July 2019 and 20 September 2019. Her Honour gave reasons for judgment on conviction and sentence on 13 November 2019.

The exhibits which were before her Honour were tendered in this Court. However, it was ultimately common ground that the only evidence which was material for present purposes was the statement of agreed facts, which was signed by the parties and admitted on the seventh day of the hearing pursuant to s 191 of the Evidence Act 1995 (NSW). Because of the detail in, and relevance of, the agreed facts, they are set out in full below:

It was common ground in the Court below that the plaintiffs had the evidential onus of raising the defence of necessity and that the prosecutor had the legal burden of disproving the defence.

In the Court below the prosecutor argued that the defence of necessity had been excluded because the plaintiffs had not exhausted all legal options (including because the Royal Society for the Prevention of Cruelty to Animals (RSPCA) was there). Although the prosecutor accepted that the plaintiffs’ beliefs (as set out in the Agreed Facts) were honestly held, he argued that their actions were not proportional. The prosecutor also argued that the defence was not available because the plaintiffs had acted to avoid harm to an animal and not a person.

As the ground of appeal against conviction relates solely to the defence of necessity, I propose to extract those passages of her Honour’s reasons which demonstrate why her Honour found that the defence of necessity had been excluded:

Mr Singleton submitted to the magistrate that the first and second plaintiffs could afford to pay a fine; the third plaintiff had “extremely limited” capacity to pay a fine; the fourth plaintiff was employed as a volunteer but was supported by her family; that the fifth plaintiff was suspended from her employment as a consequence of being charged with the offences; and that the sixth plaintiff was self-employed as a mobile disc-jockey. These submissions were not supported by evidence but were not controverted. The magistrate indicated that she would sentence on the basis that each of the plaintiffs was of good character.

Mr Singleton submitted that the Court below ought, pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act, direct that the charge be dismissed and not proceed to conviction, even though it had found each of the plaintiffs guilty.

At the conclusion of the sentencing hearing, her Honour gave ex tempore reasons, which included the following:

Her Honour, when specifying the penalty imposed in respect of those which included the plaintiffs (being those accused persons who had not pleaded guilty), said:

The distinction between a ground that involves a mixed question of fact and law on the one hand and a ground that involves a question of law alone is significant because leave is required in respect of the former but not the latter. The distinction is illustrated by R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 in which the Court held that the process of ‘applying’ a legal principle to the facts of a case involves a mixed question of fact and law and that even if there was error in applying the principle, leave would be required: R v PL at [26] (Spigelman CJ, McClellan CJ at CL and R A Hulme J agreeing). By contrast, the statement of a legal proposition, such as the element of an offence involves a question of law alone: at [27] (Spigelman CJ).

There are aspects of the plaintiffs’ submissions that raise a question of law alone: namely, what are the elements of the defence of necessity. This is relevantly analogous to the identification of the elements of the offence in R v PL. However, whether the defence of necessity sufficiently arose or was excluded by the Crown is a question of mixed law and fact, as is the question whether a sentence is manifestly excessive or whether the sentencing judge has applied the principles of parity in accordance with the law. Accordingly, leave is required. Ms Caldwell did not oppose a grant of leave.

It was common ground that, if, on the facts, the prosecution had not disproved the defence of necessity, each of the plaintiffs was entitled to be acquitted. The issue between the parties turns on the identification and application of the legal principles associated with the defence of necessity. The differences between the parties can be summarised briefly.

Mr Singleton submitted that, ignoring matters such as onus, the following were the elements of the defence of necessity:

Ms Caldwell submitted on behalf of the prosecutor that the elements of the defence of necessity were:

For the reasons that follow I reject the plaintiffs’ formulation of the elements and accept the prosecutor’s formulation.

I understood it to be common ground that the agreed facts (and in particular paragraph 2) were sufficient not only to raise, but also to establish element (2) of the defence (as per the prosecutor’s formulation of the elements), save for the question of the categorisation of the harm as being “irreparable” (which Ms Caldwell contended was not met for the purposes of element (1)).

Mr Singleton relied on several cases which did not insist on the requirement that the acts be done to avoid the infliction of harm on the accused or someone the accused was bound to protect. These cases pre-dated the seminal decisions of R v Loughnan [1981] VR 443 (Loughnan) and Rogers v R (1996) 86 A Crim R 542 (Rogers), in so far as such cases are inconsistent with what was held in Loughnan and Rogers, they must be regarded as no longer being good law.

In Loughnan, the Full Court of the Supreme Court of Victoria considered the defence of necessity in the context of the applicant whose case at trial was that the reason he had escaped from gaol was that he believed that he would be killed by someone in the gaol that night. The trial judge had refused to allow the defence of necessity to be put to the jury. The Court dismissed the appeal. Young CJ and King J held that there was no evidence upon which a jury could have found that the applicant’s escape was reasonably proportional to the threat which he said he feared and that therefore the trial judge was correct not to leave the defence to the jury. Crockett J held that although the defence could have been left to the jury there had been no miscarriage of justice because of the substantial evidence against the defence.

The Court (Young CJ and King J) outlined the elements of the offence at 448 as follows:

Their Honours also addressed the relationship between the defence of self-defence and the defence of necessity at 449 in the following terms:

Crockett J formulated the elements in the following terms at 460:

In Zecevic v DPP (Vic) (1987) 162 CLR 645; [1987] HCA 26 (Zecevic), the High Court considered the elements of self-defence. The trial judge had withdrawn the issue of self-defence from the jury on the basis that Zecevic’s belief that the deceased was going to kill him was not reasonable. The Victorian Court of Criminal Appeal dismissed his appeal. The High Court allowed the appeal and held at 661 (Wilson, Dawson and Toohey JJ, Mason CJ agreeing):

The New South Wales Court of Criminal Appeal considered Loughnan in Rogers. In Rogers the appellant had spent many years in custody before attempting to escape, for which he was convicted. His defence was that he tried to escape because he feared a life-threatening attack. He gave evidence at trial that he refused to be placed in protection because he feared that it would place him in greater danger. The trial judge refused to allow the defence of necessity to be put before the jury which inevitably led to his conviction for attempting to escape.

The appellant put his appeal on two bases: first, that the issue of necessity ought to have been left to the jury; and, secondly, that the test of necessity in Loughnan needed to be modified to take into account the developments in the principles relating to self-defence as enunciated by the High Court in Zecevic.

In Rogers, Gleeson CJ (Clarke JA and Ireland J agreeing) explained the effect that Zecevic had on directions to juries in homicide cases by comparing such directions when Loughnan was decided with directions given post-Zecevic at 545 as follows:

At 546, Gleeson CJ accepted the appellant’s submission that the decision in Zecevic meant that it was more appropriate to treat the factors, that the situation be urgent and the peril be imminent, which had formerly been requirements, as considerations which were relevant to the applicant’s belief as to his position and as to the reasonableness and proportionality of his response.

His Honour identified the rationale of the defence in the following passage at 546:

Gleeson CJ described reasonableness and proportionality as “essential control mechanisms” in the following passage at 546:

The Court in Rogers held that the issue was whether the appellant honestly believed, on reasonable grounds, that escape from prison was necessary in order to avoid threatened death or serious injury. It concluded that, having regard to the system of protection within the prison and the appellant’s choice not to apply for protection, the trial judge was correct to take the issue away from the jury as it would not have been open to the jury, properly instructed in the law, to reach any conclusion other than that going into protective custody was a reasonable alternative to escaping.

Rogers has been accepted as having modified the law relating to the defence of necessity in Loughnan: see, for example, Clarkson v The Queen [2007] NSWCCA 70; (2007) 171 A Crim R 1 (Clarkson); Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53 (Taiapa) at [37]-[38]; and B v R [2015] NSWCCA 103 at [301] (Simpson J). In Clarkson the defence was found not to justify the appellant’s conduct in obtaining passports under false names to mask his identity from certain violent criminals with whom he had associated. In Taiapa, the defence was found not to justify the appellant complying with demands of drug dealers who threatened to harm his pregnant wife and his mother. In B v R the defence was found not to justify the conduct of a mother taking her child out of Australia in the belief that the child was being sexually abused by the child’s father and that there had not been, and would not be, a proper investigation into the sexual abuse allegations.

Ms Caldwell also referred to the decision of Mark v Henshaw (1998) 85 FCR 555, which post-dated Rogers. In that case, the appellants had been charged with a breach of the Public Order (Protection of Persons and Property) Act 1971 (Cth). The appellants raised the defence of reasonable excuse. The defence of necessity was not raised. In Mark v Henshaw, as in the present case, it was common ground that the appellants’ beliefs were genuinely held on reasonable grounds. Their Honours considered the critical issue not to be limited to the appellants’ state of mind but rather to the question whether “the trespassers’ conduct is acceptable to the general community”. That is, their Honours held that there were both subjective and objective elements, the latter element being purely objective. Ms Caldwell contended that this approach applied, by analogy, to the defence of necessity in that the second element contained subjective (whether the belief was honestly held) and objective elements (whether there were reasonable grounds for the belief) but that the third element, the proportionality element (whether the conduct was proportional) was purely objective.

The defence of necessity is known for its rarity. Ms Caldwell’s submission that there had been only one case in New South Wales where the defence had been successful was unchallenged. She identified the District Court decision of Re Appeal of White (1987) 9 NSWLR 427 (Shadbolt DCJ). It is significant that this decision is reported in the authorised reports. In that case, White was not convicted of speeding towards the hospital in a car in which his gravely ill son was a passenger. White was found to have been concerned that his son would die if he did not get medical help urgently.

Mr Singleton contended that it was plain from the caveats placed by Young CJ and King J on the first element and the facts in Loughnan that their formulation of the first element was merely obiter. He pointed to earlier cases which established that the defence of necessity could justify criminal conduct where the purpose of the criminal act was to protect property or a stranger who had no pre-existing relationship with the accused. He submitted that, once it was accepted that the defence of necessity was available to protect property, the defence must, as a matter of logic, extend to animals such as the battery hens in the present case. While Mr Singleton accepted that the defence would not apply to saving the life of every creature (he excluded cockroaches from the defence), he contended that battery hens were within the ambit of the first element of the offence and that it was not to the point that the plaintiffs did not own, or have any prior connection with, them.

Mr Singleton contended that this Court ought proceed from the rationale for the defence of necessity outlined by Dickson J in Perka v The Queen (1984) 14 CCC (3d) 385 (which was referred to in Rogers) and find that the rationale would be inconsistent with limiting the defence to the protection of oneself and those whom one is bound to protect (as evident from the formulation of element (1) in Loughnan and Rogers). He particularly relied on the passage extracted above concerning a “liberal and humane criminal law”.

Further, he submitted that there was no requirement that the purpose be the sole purpose and that it was enough that it be a predominant purpose. He also submitted that, as a matter of fact in the present case, it was an agreed fact (in paragraph 3) that the predominant reason why the plaintiffs entered the land and took the chickens was to prevent further cruelty to the chickens and that it was the sole reason in respect of some of the plaintiffs. The identities of those plaintiffs for which it was the sole reason were not the subject of agreement. Mr Singleton submitted that it was, accordingly, up to the prosecutor to prove, in respect of each plaintiff, that this was not the sole reason.

Although the wording of the joint judgment in Loughnan as to the purpose element is heavily qualified, the dicta has been adopted in an unqualified way in the decisions of intermediate appeal courts in New South Wales referred to above as well as Mattar v R [2012] NSWCCA 98 at [7] (Harrison J, Beazley JA and McCallum J agreeing). Thus, although none of the cases in this jurisdiction relied on by the prosecutor related to a claim for the defence of necessity for the protection of a stranger or property, there is no indication in these authorities that such protection would be within the limits of the defence. Indeed, the formulation of the elements is to the contrary. While Gleeson CJ in Rogers set out the underlying rationale for the defence of necessity and referred to “a liberal and humane criminal law”, I do not understand his Honour to have suggested that judicial officers have a warrant for redrafting the elements by reference to the rationale per se. Indeed the reasoning highlighted in that passage is to the opposite effect: the limits of the defence must be strictly circumscribed because of the risk of the defence becoming a licence to breach the criminal law. I accept Ms Caldwell’s submission that the fact that the purpose element has not received close consideration in the decided cases does not mean that the accepted limitation ought be abandoned.

As to the proportionality element, I note that the decisions that post-date Rogers have not construed this element as merely something about which the accused must have an honest and reasonable belief, but as a stand-alone separate element which is not determined by what is in the accused’s mind at the relevant time.

It follows that the elements of the defence of necessity (which, once sufficiently raised by the accused person on the basis of evidence, must be excluded by the prosecution beyond reasonable doubt) are:

The Court below found that the defence of necessity “had not been made out”. The plaintiffs contended that this formulation indicated that the magistrate had misapprehended where the onus of proof lay. I do not regard her Honour’s reasons as reflecting any such misapprehension. As referred to above, there are two aspects to the onus: first, the evidentiary onus which lay on the plaintiffs, as accused persons, to raise the defence; and, secondly, the onus of proof of excluding the defence which rested on the prosecutor.

In the present case, the Court below considered that the purpose element could not be, and was not, made out because, although her Honour accepted that the plaintiffs “felt that they had a moral obligation to intervene”, she found that there was “no immediate peril faced by any of the accused in this case and it is questionable whether there existed any obligation or duty on them to protect the animals in the charge of Mr Stone.”

Because the Court below was both the tribunal of fact and the tribunal of law, her Honour did not need to consider, as would have been the case had the trial been on indictment before a jury, whether there was sufficient evidence as a matter of law to allow the defence of necessity to be left to the jury. For the reasons articulated in the judgments, including the oft-cited judgment of Gleeson CJ in Rogers, there are substantial limits on the defence of necessity. If it were otherwise, the defence could do untold harm to the principle of equality before the law and to institutionalised justice since it would leave the question of which laws would be respected and which could be broken to the moral views of individual vigilantes rather than to Parliament and the common law.

Had the summary proceedings before the Court below been a trial by jury, the trial judge would have been obliged, on the basis of the legal principles outlined above, to remove the defence of necessity from the jury. The plaintiffs had no prior connection, whether proprietary or otherwise, with the unfortunate chickens. The authorities which bind me provide no support for the contention that the defence of necessity extends to non-humans or chattels. The plaintiffs’ moral concern for the fate of the chickens could not justify their otherwise unlawful entry onto the property. For these reasons, the purpose element did not arise as a matter of evidentiary onus (which lay on the plaintiffs) and was in any event plainly excluded by the prosecutor.

In these circumstances it is not necessary to address Mr Singleton’s submission (referred to above) that it was for the prosecutor to prove for which of the plaintiffs, the prevention of cruelty to the chickens was the sole purpose of their entering the inclosed land.

Although the reasons of the Court below relating to the purpose element were sufficient to make the defence of necessity inapplicable and to render the plaintiffs’ convictions for the offence under the Inclosed Lands Protection Act inevitable, her Honour also found that the necessity and proportionality elements either did not arise or had been excluded by the Crown. It is, accordingly, also necessary, as a matter of completeness, to consider the matters raised by the plaintiffs with respect to these elements.

Her Honour expressed the necessity element in the language of Loughnan, without modifying it to take into account what was said in Rogers. For example, her Honour said, at [41], “Loughnan requires an urgent situation of imminent peril to exist” and found, at [42], “it cannot be said that the situation of imminent peril existed”.

The plaintiffs submitted that these statements were erroneous since they did not take into account the change in the law effected by Rogers that imminent peril was a relevant factor in assessing whether the accused person had the requisite honest and reasonable belief rather than a legal requirement. The decisions of the Court below must be read fairly as a whole. The magistrate was correct to set out what Loughnan said. Had her Honour stopped there, this may have amounted to error. However, her Honour cited the salient passage from Rogers in [42] of the judgment and ought, accordingly, to be taken to have appreciated its gravamen.

It was common ground in this Court that the necessity element had been established by the agreed facts. However, as set out above, the evidence taken at its highest could not establish the purpose element, which meant that the plaintiffs’ convictions were not only sound but inevitable. Thus any error regarding the necessity element could not have affected the result, even in the context of criminal proceedings, because it made the defence of necessity inapplicable: see RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305; (2014) 244 A Crim R 221 at [28] (Basten JA, Beazley P agreeing), referring to Maritime Authority of New South Wales v Rofe (2012) 84 NSWLR 51; [2012] NSWSC 5 at [107] (Brereton J).

The plaintiffs contended that it was not open to the magistrate to find that the defence of necessity was “not made out” in circumstances where the agreed facts meant that the Crown could not prove that each of the plaintiffs did not honestly believe, on reasonable grounds, that he or she had no alternative to doing what he or she did to avoid the harm. The plaintiffs’ submission on this element rested on the proposition that proportionality, like necessity, formed part of the honest and reasonable belief of the accused. Mr Singleton contended that the circumstance that the prosecutor had agreed that each of the plaintiffs honestly and reasonably believed each fact in paragraph 2 led inexorably to the proposition that the proportionality element was satisfied.

I do not accept this submission. For the reasons given above, proportionality is a stand-alone element which is objective and does not depend on the accused’s mental state. Thus, it does not follow from the agreed fact that each of the plaintiffs honestly and reasonably believed that the only way the cruelty could be avoided was to take the chickens away (paragraph 2(2)(g)), that the conduct was proportional. The decision of Mark v Henshaw is helpful by way of analogy, although it concerned the defence of reasonable excuse rather than necessity.

The plaintiffs particularly relied on the facts at paragraphs 2(2)(b), (c), (e), (g) and (h) and 7. It is important to include in the factual matrix relevant to the proportionality element (as her Honour did) the fact in paragraph 2(1) that when the plaintiffs entered the property, RSPCA officers were still in attendance there investigating the very matter which concerned the plaintiffs: namely, the conditions in which the chickens were being kept. This fact, which was an agreed fact, formed the basis of her Honour’s findings at [42]-[44] that the prosecution had excluded the necessity element because of the availability of an alternative. I am not persuaded that her Honour’s approach revealed any error.

It is not necessary to determine the alternative ground that was added in the amended summons since, as referred to above, it was common ground that the agreed facts were sufficient to establish the necessity element. Accordingly, there was no evidence that the plaintiffs could have given which would have assisted them to raise the question of their honest belief on reasonable grounds or improve on what was in the agreed facts on that issue. There was therefore no denial of procedural fairness as a matter of “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [38] (Gleeson CJ).

The plaintiffs have not made out any of their alleged errors in relation to the application for leave against conviction.

As referred to above, leave is required as the plaintiffs raise questions which are not questions of law alone. I have reservations about whether the arguments advanced on behalf of the plaintiffs were sufficient to warrant a grant of leave. The defence of necessity was, as her Honour found, plainly not available in the circumstances of the present case since, among other reasons, the purpose element was excluded given the nature of the harm and the plaintiffs’ lack of connection with the chickens. However, as I have considered this matter extensively in these reasons and as the grant of leave was not opposed by the prosecutor, I am persuaded that leave ought be granted.

As set out above, there are two challenges to the penalties imposed: parity and manifest excess. As an appeal on the ground of parity requires the plaintiffs to accept that the sentence is otherwise correct, it is convenient to address the ground of manifest excess first.

Mr Singleton argued that the plaintiffs were well-motivated, did no material harm and only nominally interrupted Mr Stone’s business, which was effectively terminated three days later by the RSPCA. He contended that they were not, as her Honour found, “true vigilantes” and attempted neither to punish nor restrain Mr Stone and merely wished to rescue the chickens. I do not find this analysis helpful. The expression “vigilante” is defined in the Macquarie Dictionary as “a private citizen who, usually as one of a group of such citizens, assumes the role of guardian of society in maintaining law and order, punishing wrongdoers, etc”. Although the plaintiffs did not “punish” Mr Stone in any direct sense by, for example, inflicting physical violence, they trespassed on his land and interrupted his business and tried to remove his chickens. They purported to do what they believed the RSPCA (being the authorised body for acting in these circumstances) ought to have done because they considered that the RSPCA was not sufficiently effective to prevent ongoing cruelty to the chickens. Her Honour’s finding that their conduct was that of vigilantes was not only open but correct.

Whether a sentence is manifestly excessive is a conclusion and does not depend on the establishment of patent error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. In order to make out the ground of manifest excess, the plaintiffs are required to establish that the sentence imposed is unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). Sentencing judges “are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”: Markarian at [27].

The fine imposed by her Honour represented 27% of the maximum. It reflected her Honour’s assessment of the objective seriousness of the offence as being serious but not of the highest seriousness. I am not persuaded that the sentence imposed on each of the plaintiffs was either unreasonable or unjust. It was open to her Honour in the exercise of her discretion to impose a fine on each of the plaintiffs in the sum of $1,500, having regard to all objective and subjective considerations, including that each of the plaintiffs was regarded as a person of good character.

Mr Singleton submitted that, although each of the plaintiffs had “equal involvement” in their common offence, the Court below erred by imposing the same fine on each of them without regard to the differences in their financial capacity to pay. The capacity to pay was the only subjective circumstance on which he relied in support of the parity ground. He submitted, in writing:

Mr Singleton accepted in oral submissions that “if the magistrate reduced the penalty of the wealthier, then nobody was actually disadvantaged.”

Ms Caldwell conceded in her written submissions that the Court below had erred in not complying with s 6 of the Fines Act 1996 (NSW) which relevantly requires a court, when exercising a discretion to fix the amount of any fine, to consider “such information regarding the means of the accused as is reasonably and practicably available to the court for consideration”. Mr Singleton did not rely on this as amounting to error.

I am not satisfied that the concession was correctly made. Her Honour took into account the information she had been given by Mr Singleton about the plaintiffs’ respective capacities to pay a fine. It is plain from her Honour’s reasons that, in fixing the amount of the penalty, the magistrate had regard to the circumstance that some of the offenders had limited means to pay the fine. Her Honour chose to reduce the fine from what she considered would otherwise have been appropriate (a fine in the order of $2,000-$2,500) to take account of the limited means of some of the plaintiffs.

The parity principle was summarised by Dawson J (Wilson J agreeing) in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 as follows at 623:

In the present case, the only basis for the allegation of disparity was the financial circumstances of each offender. As referred to above, it was accepted the involvement of each was the same. It is important to recall that none of the plaintiffs adduced evidence as to his or her financial means. There was no evidence of the particular means of any given plaintiff beyond unquantified descriptions given by Mr Singleton from the bar table. Thus, her Honour was not in a position to determine what, if any, hardship would be suffered by any plaintiff by a fine of the order imposed.

It can be assumed that sentences will affect people differently. For example, a six year sentence of imprisonment imposed on six persons who were equally involved in an armed robbery might be experienced differently by the 45-year old participant than the 25-year old participant. Similarly, the effect of a fine of $1,500 might be almost immaterial to someone who has a good income and yet impose substantial hardship on someone who is unemployed and plagued by debt. A sentencing judge must take account of relevant matters known to the court when sentencing: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [23]-[24] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

What her Honour had been told was that the plaintiffs had different financial means but were each of good character and were equally involved. Her Honour was entitled to consider, in the absence of evidence to the contrary, that a fine of $1,500 was appropriate, even for those of limited financial means. By effectively discounting the fine below what her Honour considered appropriate, her Honour appears to have given greater weight to imposing the same penalty for the same conduct than to the capacity of each to pay. This was a choice which was open to her Honour in the exercise of the sentencing discretion and does not result in any disparity in the sentences imposed.

I note for completeness that Mr Singleton submitted that, if error were found, he would rely on the successful appeal on sentence of one of the co-offenders, Danesh Uthaiyakumar, who was re-sentenced by the District Court which quashed the conviction and the fine and released him pursuant to a conditional release order pursuant to s 9(1)(b) of the Crimes (Sentencing Procedure) Act. Mr Singleton confirmed that he did not rely on this matter as being relevant on parity per se, but only if error were otherwise established: cf. Eakin v R [2020] NSWCCA 294 (Rothman and Price JJ, Basten JA contra). In any event, I do not discern any “marked disparity” between a conviction with a fine of $1,500 and a conditional release order with no conviction recorded. Had this matter been the only matter in issue, I would have refused leave.

I have considered each of the grounds in as much depth as I would have done had leave been granted. The prosecutor does not oppose leave. In these circumstances, I am persuaded that leave ought be granted although I am not persuaded that there was any arguable error in the sentence imposed by the Court below.

This Court has held that it has power to order costs in proceedings under Part 5 of the CAR Act by a combination of s 23 of the Supreme Court Act 1970 (NSW) and by necessary implication from ss 55 and 72 of the CAR Act: Cunningham v Cunningham (No 2) [2012] NSWSC 954 at [18] (Button J); Turner v Wheeler (No 2) [2016] NSWSC 431 at [11] (Campbell J) and Sayer-Jones v Director of Public Prosecutions (No 2) [2019] NSWSC 1786 at [27] (Adamson J).

The prosecutor seeks an order for costs. Mr Singleton accepted that the successful party would be entitled to costs. However, he submitted that the questions raised by the plaintiffs were matters of general public interest and that the plaintiffs were “not pursuing a personal interest other than their own convictions”. He contended that, in those circumstances, if the plaintiffs were unsuccessful, there should be no order as to costs. Although Ms Caldwell accepted that the submissions were addressed to the limits of the defence of necessity, she contended that the plaintiffs’ appeal was “entirely unmeritorious” and that, in these circumstances, the plaintiffs ought pay the prosecutor’s costs of the proceedings.

I accept Ms Caldwell’s description of the application for leave to appeal. While there may have been some public interest in the topic of the defence of necessity, on no view of the facts in this case, as agreed or as found by the magistrate, could it ever have justified the plaintiffs’ conduct. Further, the plaintiffs took the proceedings to have their own convictions and penalties quashed. In these circumstances, I am persuaded that they ought be ordered to pay the prosecutor’s costs of the proceedings.

For the reasons given above, I make the following orders: