Solicitors:
File Number(s): 2022/00106913; 2022/00106974
Decision under appeal Court or tribunal: Local Court
Jurisdiction: Criminal
Date of Decision: Glover: 7 March 2023
Coco: 2 December 2022
Before: Glover: Magistrate Reiss
Coco: Magistrate Hawkins
File Number(s): 2022/00106913
2022/00106974
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Judgment
On the morning of Wednesday 30 April 2022, 31-year-old Deanna Coco and 61-year-old Alan Glover engaged in a protest on the Sydney Harbour Bridge which, in short, was motivated by their sincerely held beliefs about effects of climate change on the planet. The Court of course expresses no view about that debate which occupies a great deal of media time and attention for those passionately involved in the cause.
The appellants were dealt with in the Local Court at different times. Mr Glover was sentenced last week after pleading guilty to an offence contrary to s 144G of the Roads Act 1993 of entering the Sydney Harbour Bridge to disrupt vehicles. Magistrate Reiss imposed a Community Corrections Order for 18 months and a fine of $3,000, taking into account on a Form 1 a charge of using an explosive not in a prescribed manner.
Ms Coco was sentenced on the basis which is quite significantly different to the sentence process that I have to undertake today. She was given initially sentence in the Local Court to an aggregate term of imprisonment of 15 months with a non-parole period of eight months. The indicative terms imposed by the Magistrate as follows:
1. Sequence 1 an offence contrary to s 144G of the Roads Act 1993 for enter Sydney Harbour Bridge etc to disrupt vehicles an indicative sentence of 12 months imprisonment.
2. Sequence 3 an offence contrary to s 93FB of the Crimes Act 1900, for possess bright light signal etc, in public place, and indicative sentence of 12 months imprisonment. The Crown now concedes that this sequence should be withdrawn.
3. Sequence 7, an offence contrary to s 546C of the Crimes Act 1900 of resist or hinder police officer in the execution of duty, an indicative sentence of nine months imprisonment.
Ms Coco was also sentence in relation to the following sequences:
1. Sequence 4, an offence contrary to s 56 of the Explosive Regulation 2013 of use modify etc authorised explosive not as prescribed. She was fined $2500. This offence had been taken into account on a Form 1 for Mr Glover.
2. Sequence 6, an offence contrary to s 199(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 of refuse/fail to comply with direction under Part 14, which was dealt pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.
Ms Coco spent a total of 13 days in custody before being released on strict conditions, in some respects amounting to quasi custody for about 84 days.
The facts in Ms Coco's case before the Magistrate included a false assertion by the police that the protest involving them stopping a vehicle and impeding an ambulance attending some emergency with lights flashing. That false fact was also used in sentencing a co-offender Mr Larbalestier, but that fact is now abandoned by the Crown.
In short, the facts which are depicted in the video shown by the Crown in court this morning show that the appellants were engaged in taking a truck onto the southbound lane of the Cahill Expressway in the vicinity of a pylon on the Sydney Harbour Bridge. Both appellants got out of the truck and climbed onto the roof and each used a flare causing orange coloured smoke to be emitted vertically.
The facts or the charge sheet asserts that the disruption occurred over about 28 minutes between 8.28am and 8.56am. Contrary to the submissions of the Crown the facts do not establish that traffic was blocked completely or how many vehicles were affected. The video appears to show traffic moving in the other lanes both north and southbound in a way not dissimilar to conventional peak hour traffic but there is no doubt that police were required to attend and remove the appellants and place them under arrest.
The subjective case put on behalf of Mr Glover before the Magistrate and today principally involves a number of glowing references from members of the community and focus on his sincere belief in the effects of climate change against the background of a man with no previous convictions and a long record of service to the Rural Fire Service.
The evidence also shows that he has been stood down from the Rural Fire Service as a result of his involvement in this case and that a conviction is likely to involve the termination of his service to the Rural Fire Service, a cause to which he has been devoted for a significant period of time.
Notwithstanding what Button J said recently in KM v R [2023] NSWCCA 10 regarding the assessment of objective seriousness, the Crown submitted that Mr Glover's offence involved objective seriousness which was above the mid-range and that there was no sense of proportion in his protest compared to the issue which was agitating him.
He says that he is a member of a group called Fireproof Australia which is a political group of young citizens who take action and draw attention to things Government can do to mitigate the impacts of climate change. He had seen as a bushfire service volunteer what he described as firsthand the effects of the devastation of bushfires which he attributed in part to the climate emergency and the lack of Government action.
He says that he did not want to take action and cause disruption to the Sydney community but given the lack of climate action by successive Governments he felt he had no other choice. He felt desperate. His motivation for participating in a public protest was to draw the community's attention to raise awareness about the climate crisis and bring some action in relation to their specific demands. He said he chose the Harbour Bridge because of its high visibility and symbolic significance to the community and because he knew they could block one lane and allow traffic to move around them using the other five lanes available at the time which is, according to the evidence, what occurred.
He spent a night in custody having been bail refused and he accepts full responsibility for having caused disruption to traffic and letting off the flare. He said he feels strongly about what he has done and he will not stop agitating for climate change action and action on assets for firefighting, but he will do it in the way which he always has which is by writing and annoying his elected representatives in the hope that they will act at some stage.
The submission ultimately put by Ms Graham on behalf of Mr Glover was that the matter should be dealt with by way of an order not involving a conviction.
In R v Mauger [2012] NSWCCA 51 Harrison J considered the consequences of such an order. His Honour said at [39],
In terms of the relative criminological and social consequences for the respondent on the one hand and society on the other hand, the recording of a conviction for the offence in this particular case is of little or no practical or theoretical consequence to the good order of the community but is by way of contrast potentially of great importance to the respondent
His Honour went on to say at [40],
[T]hat the imposition of a bond pursuant to s 10 operates in fact, and will be perceived by the community as operating, in the same way as a bond imposed pursuant to s 9. The particular legal and social consequences for the respondent of recording a conviction against him in this case far outweigh the requirements of punishment, denunciation, or special or general deterrence. The purposes of sentencing described in s 3A of the Act are in my opinion properly and adequately achieved by the imposition of a conditional bond,
Those sentiments are frequently referred to by courts when this difficult question arises, and in my view in the case of Mr Glover they aptly apply.
The orders I make in Mr Glover's case are:
1. The severity appeal is upheld.
2. The conviction and sentence orders are set aside.
3. I find the offence proven, taking into account the Form 1 matters (sequence 4), pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, an order is made discharging the defendant under a s 9(1)(b) conditional release order without proceeding to conviction for a period of 12 months commencing today.
4. The conditions to apply during the term of the order are as follows:
STANDARD CONDITIONS
1. You must not commit any offence.
2. Appear before court if called upon to do so at any time.
It will be obvious that in the course of these brief reasons, delivered ex tempore, I have not felt it necessary to survey all the detailed facts and subjective material which have been before the Court.
Turning to Ms Coco's case, she has what the Crown describes as a chronology of offending helpfully set out in exhibit B commencing 2019 and running through to the commission of this offence.
As Mr Blair puts on her behalf, the psychologist's report notes that in late 2018 or early 2019 she attended a talk entitled "Heading for Extinction". She subsequently reported hearing Peter Thumberg's call to act like the house is on fire echoing in her head for months. She became concerned about plans for a significant expansion of coal mining with big projects such as the Adani mine in Queensland and growing environmental concerns left her feeling highly anxious with a pervading sense of the impending risk of catastrophic environmental impacts due to climate change.
For what it is worth the Australian Psychological Society position emphasises that taking action on climate change is a strong antidote to anxiety and a psychologist opined that her activism may be seen as a commencement response to the high level of climate distress, which she experiences and that formulation aligns with the recommendations of international peak bodies for psychology that ecological anxiety should be understood as a realistic response to existential threat posed by climate change.
Her previous record has involved protest and civil disobedience in New South Wales, Victoria and the ACT, none of which have led to terms of imprisonment. They have all been dealt with by either fines or bonds or without convictions.
In a letter to the Magistrate before her sentence in December last year she says that her actions on the day of these offences were motivated by the fact that her partner had been imprisoned for running onto the pitch of a football game to draw attention to climate change. She said that she was willing to accept the consequences of her actions, she respects the law and believes it should be upheld, she is sorry to have caused distress to people and she hoped that it is clear that she did not undertake these actions for any kind of personal gain.
She is, as Mr Blair puts, now engaged in constructive volunteer work with victims of the floods in Lismore and dedicating her time to rebuilding of the community and she intends to direct her energy to other paths of action and she has been invited to join a political party.
In a letter today she notes that she has not engaged in unlawful protests since April last year, she appreciates that she must accept the consequences of her action, she has already paid a high price for her actions by the time in custody and the time in quasi custody.
There are also a number of favourable references from her mother and other people who have known her for an extended period of time they all speak of her passionate devotion to the cause that is motivating her.
I do not accept the Crown's submission to the effect that she is a danger to the community, and she has demonstrated no insight into her offending. There is no evidence at all of her actions constituting a danger to the community.
The Crown acknowledges that there is no aggravating factors applicable, and she pleaded guilty at an early stage justifying a 25% discount on any penalty for the principal offence. I accept that her prospects of rehabilitation are favourable given the evidence to which I have referred as to her progress since April last year. I do not accept the Crown's assertion that the s 5 threshold requiring a term of imprisonment has been surmounted.
The orders that I make, again without the necessity of traversing in these oral reasons the entirety of the submissions and the evidence before the Court because that is not necessary on a severity appeal, in relation to sequences 1, 7 and 4:
1. The severity appeal is upheld.
2. The convictions are confirmed.
3. The sentence orders are set aside.
Sequence 1 Enter etc, Sydney Harbour Bridge etc disrupt etc vehicles
1. Pursuant to section 9(1)(a) of the Crimes (Sentencing Procedure) Act 1999, I order the offender to comply with a conditional release order, for a period of 12 months commencing today.
2. The conditions to apply during the term of the order are as follows:
STANDARD CONDITIONS
1. You must not commit any offence.
2. Appear before court if called upon to do so at any time.
ADDITIONAL CONDITIONS
1. Continue psychological treatment with Ms Brenda Dobia, psychologist
Sequence 7 Resist or hinder police officer in the execution of duty
1. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the offender is convicted of the offence and no further penalty is imposed.
Sequence 4 Use, modify etc authorised explosive not as prescribed
1. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the offender is convicted of the offence and no further penalty is imposed.
Sequence 6 Refuse/fail to comply with direction with direction under Part 14
1. The severity appeal is not pressed in relation to sequence 6 and is withdrawn.
2. The orders of the Magistrate are confirmed.
In relation to sequence 3, I make the following orders:
1. Leave granted to file conviction appeal in relation to sequence 3.
2. Crown does not oppose the conviction appeal.
3. The conviction appeal upheld.
4. The conviction and other orders of the Magistrate are set aside.
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Decision last updated: 17 August 2023