Kershaw v R [2024] NSWCCA 27

Kershaw v R [2024] NSWCCA 27

The convictions for resisting officers Dimond and Duckett stand because those officers were acting in execution of their duty (keeping the peace and/or arresting for fresh offences) independent of the original unlawful arrest; the offences charged were properly constituted as separate offences based on distinct resistance to each officer; a miscarriage of justice was not shown to permit withdrawal of guilty pleas; however, the sentencing judge failed to adequately consider steps towards rehabilitation, amounting to error requiring resentencing.

Parties
Appellant/applicant: William Kershaw; Respondent: Crown
Jurisdiction
Australia
Judgment Date
01 March 2024
Procedural Posture
Criminal Appeal / Court of Criminal Appeal (nsw) Decision on Appeal Against Conviction and Sentence
Outcome
Conviction appeals dismissed; Sentence appeal allowed; Sentence quashed and appellant resentenced
Legal Topics
Appeal Against Conviction, Resisting Police Officer, Unlawful Arrest, Aggregate Sentencing, Double Jeopardy, Sentencing of Offenders With Cognitive Impairment, Police Powers, Withdrawal of Guilty Plea
Criminal Law Appeal Against Conviction Resisting Police Officer Unlawful Arrest Aggregate Sentencing Double Jeopardy Sentencing of Offenders With Cognitive Impairment Police Powers +1 more

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Parties

William Kershaw

Appellant/applicant

Crown

Respondent

Procedural Posture

Criminal Appeal / Court of Criminal Appeal (nsw) Decision on Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether appellant should be permitted to withdraw guilty pleas to two counts of resisting officer in execution of duty
  2. 2 Whether resistance to Dimond and Duckett (third and fourth officers) amounted to resistance to officers in execution of their duty when earlier arrest was unlawful
  3. 3 Whether convictions for resisting two separate officers constituted double punishment for the same act

Ratio Decidendi

The convictions for resisting officers Dimond and Duckett stand because those officers were acting in execution of their duty (keeping the peace and/or arresting for fresh offences) independent of the original unlawful arrest; the offences charged were properly constituted as separate offences based on distinct resistance to each officer; a miscarriage of justice was not shown to permit withdrawal of guilty pleas; however, the sentencing judge failed to adequately consider steps towards rehabilitation, amounting to error requiring resentencing.

Court Disposition

Conviction appeals dismissed; Sentence appeal allowed; Sentence quashed and appellant resentenced

Orders

  • Grant leave to appeal on grounds 1, 2, 4, 5 and 6, refuse leave on ground 3.
  • Appeal against conviction (grounds 1 and 2) dismissed.