Antaw v R; Kitson v R; Lee v R (No 2) [2021] NSWDC 821

Antaw v R; Kitson v R; Lee v R (No 2) [2021] NSWDC 821

The offences involved conscious refusal to comply with lawful police directions to move off a roadway and were not trivial, although they were of lesser seriousness, involved limited obstruction and ended shortly after arrest. For Mr Antaw and Ms Kitson, their mature age, good character, absence of criminal history and the lesser seriousness of the offending warranted s 10 dismissals despite no evidence of contrition. Ms Lee was differently placed because she had prior matters, including a previous s 10 order, and showed no regret; her personal circumstances motivating lawful protest were not extenuating factors for later refusing a lawful police direction, so her s 10 application failed...

Jurisdiction
Australia
Judgment Date
26 March 2021
Procedural Posture
Criminal Sentence Appeal From Local Court to District Court by Persons Sentenced Against Sentence / Sentence Appeal After Conviction Appeals Were Dismissed
Outcome
Sentence appeals of Roy Edmond Antaw and Felicity Kitson upheld, offences found proved but charges dismissed without conviction pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. Fiona Michele Lee's s 10 application refused, sentence appeal dismissed, conviction entered and a fine of $150 imposed.
Legal Topics
['appeal From Local Court to District Court' 'refusing or Failing to Comply With Police Direction' 'section 10 Dismissal Without Conviction' 'fine' 'triviality of Offence' 'character and Antecedents']
['criminal Law' 'sentencing'] ['appeal From Local Court to District Court' 'refusing or Failing to Comply With Police Direction' 'section 10 Dismissal Without Conviction' 'fine' 'triviality of Offence' 'character and Antecedents']

Case Brief

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Procedural Posture

Criminal Sentence Appeal From Local Court to District Court by Persons Sentenced Against Sentence / Sentence Appeal After Conviction Appeals Were Dismissed

Legal Issues

  1. 1 ['Whether each appellant should receive an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 after being found guilty of refusing, without reasonable excuse, to comply with a police direction under s 199 of the Law Enforcement (Powers and Responsibilities) Act 2002.' 'Whether the offences were trivial or of lesser seriousness so as to warrant dismissal without conviction.' "Whether the appellants' character, antecedents, absence of contrition and circumstances of the offending warranted a s 10 order." "Whether Ms Lee's prior matters and personal circumstances affected the appropriateness of a s 10 order."]

Ratio Decidendi

The offences involved conscious refusal to comply with lawful police directions to move off a roadway and were not trivial, although they were of lesser seriousness, involved limited obstruction and ended shortly after arrest. For Mr Antaw and Ms Kitson, their mature age, good character, absence of criminal history and the lesser seriousness of the offending warranted s 10 dismissals despite no evidence of contrition. Ms Lee was differently placed because she had prior matters, including a previous s 10 order, and showed no regret; her personal circumstances motivating lawful protest were not extenuating factors for later refusing a lawful police direction, so her s 10 application failed...

Court Disposition

Sentence appeals of Roy Edmond Antaw and Felicity Kitson upheld, offences found proved but charges dismissed without conviction pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. Fiona Michele Lee's s 10 application refused, sentence appeal dismissed, conviction entered and a fine of $150 imposed.

Orders

  • ['In respect of Mr Antaw: the sentence appeal is upheld.' 'In respect of Mr Antaw: the offence is found proved, but pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999, without proceeding to conviction, the charge is dismissed.' 'In respect of Ms Kitson: the sentence appeal is upheld.' 'In respect of Ms...