Kershaw v R

Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2020/178947 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2022] NSWDC 90 Date of Decision: 29 March 2022 Before: Wilson SC DCJ File Number(s): 2020/178947

JUDGMENT

1. LEEMING JA: Mr William Peter Kershaw appeals from his conviction on two counts of resisting a police officer in the execution of duty, contrary to (former) s 58 of the Crimes Act 1900 (NSW), and to the extent necessary seeks to withdraw his guilty pleas to those counts. He also seeks leave to appeal from an aggregate sentence of 6 years' imprisonment with a non-parole period of 4 years imposed following those and other convictions.
2. Despite the simplicity of that summary, the appeal against conviction gives rise to some unusual issues as to this Court's jurisdiction. It also illustrates the principles applicable when multiple police officers are involved in a response, and there has been a failure by one to comply with the obligations imposed by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The appeal against sentence brings to prominence the appalling violent and abusive conduct to which uniformed police officers in the ordinary performance of their duties may be exposed, and the need for general deterrence.

Factual background

1. The offending happened over a short period of time late in the evening of 16 June 2020, between 10:25 and 10:40pm at a suburban house. Some of the details of timing within that quarter hour are of importance to the submissions seeking to characterise the conduct of the four police officers involved. The officers were Senior Constables Dekort and Kinghorne, who were first at the scene arriving at around 10:25pm, followed by Constables Dimond and Duckett arriving at around 10:29pm, with both pairs of officers arriving in marked vehicles. Those details are mostly established by a combination of contemporaneous electronic evidence, being (a) the body-worn camera footage (which also recorded audio) worn by Senior Constable Dekort, (b) the sound recording of the police radio channel (also known as the "VKG recording"), (c) a "CAD log", which recorded information from the radio channel and other aspects of the Computer Aided Despatch system in operation, and (d) the recordings of two triple-0 calls. The most reliable evidence of what occurred and precisely when it occurred is the video and, especially, the sound, recorded on Senior Constable Dekort's body-worn camera (the reasons for this will be explained in due course).
2. By way of introduction in order to outline the issues arising in this appeal, the appellant and Mr Glenn Jerome were known to each other, because the appellant had commenced a relationship with the latter's former partner. More recently, the appellant had broken up with that woman.
3. The appellant drove to Mr Jerome's house in Buff Point at around 9:30pm on 16 June 2020. The appellant had evidently been drinking heavily. Mr Jerome's mother, who was present for dinner, said uncontroversially that the appellant was "absolutely blind drunk". He became agitated and aggressive. There was a struggle between the two men, following which Mr Jerome ran inside the house and locked the door. The appellant banged on the door with force and violently smashed on the walls, door and windows. Mr Jerome called triple-0 on two occasions and armed himself with a children's baseball bat for protection.

The triple-0 calls

1. Recordings of both triple-0 calls were in evidence. In the first, Mr Jerome told the operator that the appellant had broken up with the woman who was also the mother of Mr Jerome's children, that the appellant had "turned violent", was trying to hurt Mr Jerome and was "drunk and confused". He said "he's fallen over numerous times I've been [doing] nothing but tried to help him". A few minutes into the call, Mr Jerome said that the appellant was "about to break the window" and "he's not responding to reason", following which the operator said "Okay I've updated the police that that's happened". He also said "I don't want to get him into trouble he needs help".
2. Mr Jerome called triple-0 a few minutes later, and commenced "you'll see on the system I just called you like three minutes ago he's back at the front door now he's bashing my front door in". He told the operator the front door was locked and there followed this exchange: JEROME: … but he's bashing it in. It's only a flimsy door I have a baseball [bat] in my hand I got no choice but to use it if he doesn't stop. He's about to bash my door in, windows the kids are in the back of the house. OPERATOR: I spoke to the police already and I'm letting you know … JEROME: Police are here. OPERATOR: … they are on their way OK. Police are there? JEROME: He's gone yeah the police are here.

Senior Constables Kinghorne and Dekort arrive

1. Senior Constables Dekort and Kinghorne arrived in a marked vehicle with siren activated. Both were in uniform. They arrived at around 10:25pm. The bodycam footage shows the yard of the premises, apparently strewn with debris, and that Senior Constable Dekort followed behind Senior Constable Kinghorne.
2. In what follows I shall use the timestamp on Senior Constable Dekort's body-worn camera. Both senior constables approached the appellant who was kneeling in the yard, apparently calm, with his mother standing over him. At 10:25:35 Senior Constable Kinghorne placed his hand on the offender's back. There was almost immediately a struggle between the appellant and Senior Constable Kinghorne, with the former saying "No, don't fucking handcuff me" and the latter saying "Stop, stop. Stop resisting". Both men had said those words by 10:25:43. There are 24 seconds of video at the commencement of the recording for which no audio is available (that was a limitation of the equipment, rather than a defect in the particular recording), and so what was said and not said before Senior Constable Kinghorne touched the appellant is not recorded. The primary judge said when delivering judgment acquitting the appellant of two of the charges that it was not disputed that the appellant's mother had said, "He seems ok now, but he's quite violent, he will need to be handcuffed", and that accords with the testimonial evidence.
3. The struggle escalated, involving both police officers, with the appellant repeatedly yelling profanities, hitting Senior Constable Dekort in the face, grabbing hold of her around her neck placing her in a chokehold, and using his other hand to pull her hair. Between 10:27:05 and 10:27:09 while Senior Constable Dekort was shouting "Ah, my hair" and was obviously in considerable pain, the appellant said "Mum, watch what they do. Watch this, Mum" and (evidently conscious of and responding to Senior Constable Dekort's cries of pain) said "Deal with it you fuckwit. Deal with it you fuckwit" and "Deal with it you fucking dog cunt".
4. After releasing Senior Constable Dekort's hair, the appellant punched Senior Constable Kinghorne in the face and body and then grabbed hold of his crotch with force. The appellant had held Senior Constable Dekort around the neck for some 45 seconds.
5. The primary judge observed when sentencing the appellant that: The body-worn camera footage was confronting and distressing. Senior Constable Dekort was screaming in pain and the offender continued to say, "Fucking deal with it. Fucking deal with it" and "Mum watch this".

Constables Dimond and Duckett arrive

1. Constables Dimond and Duckett arrived at approximately 10:29pm. The body-worn camera records Senior Constable Kinghorne saying (seemingly to the appellant's mother), at 22:29:35 "Yeah, move, there's four just move. Mum, move away".
2. The appellant continued to struggle notwithstanding the presence of four officers, and even after he was handcuffed. It will be necessary in what follows to address the details of what each of Constables Dimond and Duckett did, but the evidence was that Constable Duckett assisted Senior Constable Kinghorne in handcuffing the appellant, while Constable Dimond performed a gloved search upon him and restrained him after he was handcuffed, until ambulances arrived. The appellant continued to resist arrest and to shout very strong obscenities at the police after being handcuffed. The appellant was sedated by paramedics (it took two doses of the sedative triperidol before that occurred) and was taken by ambulance to John Hunter Hospital. The appellant's blood alcohol concentration was later found to be 0.25 mg/l.
3. When Constable Dimond arrived at the scene, she turned on her own body-worn camera. This was played in part at trial but its tender was withdrawn and I have neither viewed it nor relied on the transcript. She gave uncontroversial evidence that she was listening to the police radio as she approached the property. She said: Soon after I heard Senior Constable Daniel Kinghorne on the radio saying "Urgent". Constable Duckett and I continued to drive there urgently, and shortly after, parked our car at the front of [address]. At 10.29pm I jumped out of the car and could hear groaning and a wrestle happening. I activated my body-worn video camera. I ran over and I could see Senior Constable Kinghorne and Senior Constable Dekort on the ground, struggling with a man and an elderly female standing over the top of them and yelling at them. I ran over and told her to move while walking over to the legs of the male they were trying to restrain and applied pressure to stop him from thrashing around as Duckett jumped on to help restrain him.
4. Senior Constables Dekort and Kinghorne each sustained substantial physical injuries, especially the former.

Reconciling the various sound recordings

1. A sound recording of the police radio was played at trial and became exhibit K. It is quite clear from the sound recording, as they approached, Constables Dimond and Duckett were told the incident was "Red" and "Urgent".
2. There are more difficulties marrying the time-stamps on the electronic evidence than might be expected. The timing of some of the entries in the CAD log is delayed because, according to the evidence, they were entered manually shortly after the words were spoken. For the same reasons, the CAD log is not comprehensive.
3. It is also necessary to be cautious in using the timing on the recording of the police radio. This is evident from three portions of the recording of the body-worn camera.
4. At 10:27:54, Senior Constable Dekort is recorded as saying, "Twenty one, how long is that car off?" Although it may be inferred that Senior Constable Dekort was speaking to the operator, her question cannot be heard on the sound recording of the police radio. Nor can most of her cries of pain.
5. There follow two statements by Senior Constable Kinghorne, both of which may also be heard on the recording of the police radio channel. 1. The first commences at 22:27:55: "21 - we need one red - he's ripped my partner's hair out". 2. The second commences ten seconds later, at 22:28:05: "He's IP highly aggressive, four of us are struggling to keep him down; haven't got a taser".
6. Unlike the body-worn camera, which is a continuous recording of vision and sound, the sound recording from the police radio tendered at trial appears to have been a composite of snippets of sound recordings pasted together. Nothing turns on the reason for that being so. All that matters is that although the recording contains Senior Constable Kinghorne's voice saying both of the statements reproduced above, the first is heard at 9 minutes and 13 seconds into the recording, while the second is heard not ten seconds later, but seventeen seconds later, commencing at 9 minutes and 30 seconds into the recording. I conclude that the timing of the sound recording of the police radio is not necessarily a reliable indicator of the passage of time. For the purposes of this appeal, I have therefore relied on the timing on the continuous video and audio recording on Senior Constable Dekort's body-worn camera.
7. The main reason for descending into these details is to respond to a submission made on behalf of the appellant: WILSON J: Why weren't Constables Duckett and Dimond entitled to arrest your client for the substantive offences on the earlier police officers, Dekort and Kinghorne? Didn't they see part of it? EVERS: The evidence suggests no. If one looks at their statements they arrived at a point in time when something - arrests were going on. If your Honours are familiar with the video you'll see that there is a point in time where the initial assaults on police take place after the arrest, there's then a period of time where the applicant is relatively calm and seems to be subdued and then there's a point in time when there's a dispute around the presence of the mother and at which point the applicant becomes aggressive again.
8. It is true that Constables Dimond and Duckett only saw the conclusion of the assaults upon Senior Constables Dekort and Kinghorne. However, the electronic evidence establishes conclusively that they heard Senior Constable Kinghorne describing those assaults, over the radio, in real time, as they drove towards the premises. The most salient aspects of the evidence bearing upon this is summarised below.
9. All four officers responded to the call for assistance prompted by Mr Jerome's triple-0 call.
10. It is not clear to me that Constables Dimond and Duckett would have heard Senior Constable Dekort's screams of pain, and even if they did, it is not established that they would have recognised them for what they were. It seems likely that they would have heard her distressed voice thereafter (22:27:53) saying "21 - how long is that car off", but that cannot be heard on the recording of the police radio and I proceed on the assumption that they did not hear it.
11. However, Constables Dimond and Duckett unquestionably heard the voice of Senior Constable Kinghorne saying a few seconds (22:27:55) later that his partner's hair had been ripped out, and ten seconds after that, "He's IP [intoxicated person] highly aggressive, four of us are struggling to keep him down; haven't got a taser" (22:28:05).
12. I can confidently conclude that Constables Dimond and Duckett arrived around 22:29:35. That is when the mother is told to move away because four officers had arrived. That accords with what can be seen and heard in the body-worn camera recording, as well as Constable Dimond's unchallenged evidence. I am conscious of Senior Constable Kinghorne's statement that "four of us are struggling to keep him down" one minute and forty seconds earlier, but considering all of the evidence as a whole, the "four of us" likely meant the two senior constables, the appellant's mother and her partner Paul (at one stage the body-worn camera reveals the appellant speaking to "Paul").
13. Further, when they arrived, Constables Dimond and Duckett saw the ongoing struggle between the appellant and the two officers who had arrived minutes before, and perhaps also the debris in the front yard. Contrary to the answer to Wilson J's question reproduced above, it is clear that the appellant was struggling with Senior Constable Kinghorne when Constables Dimond and Duckett arrived, and the latter was thereupon engaged in forceful efforts to apply handcuffs.

The appellant's guilty pleas and acquittals

1. The appellant pleaded guilty to one count of intimidating Mr Jerome contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and one count of assaulting Mr Jerome contrary to s 61 of the Crimes Act.
2. The appellant pleaded not guilty to two counts of assaulting Senior Constables Dekort and Kinghorne while those officers were executing their duty and thereby occasioning actual bodily harm, contrary to s 60(2) of the Crimes Act. However, he pleaded guilty to backup charges of assaulting each of those officers thereby occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act.
3. The appellant also pleaded guilty to three related offences pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), being an offence of destroying or damaging property (namely, the front wall of Mr Jerome's house) contrary to s 195(1)(a) of the Crimes Act, and two counts of resisting an officer in the execution of duty, contrary to s 58 of the Crimes Act. These latter counts were based on the appellant's resistance to Constables Dimond and Duckett, and are the subject of his appeal against conviction. The Court Attendance Notice for each of those counts provide the following "details of offence": Crimes Act 1900, s 58 Resist officer in execution of duty - T2 between 10:20PM and 10:30PM 16/06/2020 at Buff Point did resist [the relevant officer] being a Constable executing [his/her] duty.
4. A trial proceeded before the District Court on the two counts pursuant to s 60(2). Both sides agreed to a trial by a Judge alone pursuant to s 132 of the Criminal Procedure Act, reflecting the fact that the principal issue was whether Senior Constables Dekort and Kinghorne when attempting to arrest the appellant were acting in the execution of their duty. Senior Constable Kinghorne accepted that he had not, prior to placing his hand on the appellant's back, informed him of the reason for his arrest.
5. The primary judge was satisfied beyond reasonable doubt by the CAD logs and the VKG recording that the police officers suspected on reasonable grounds that the appellant had committed an offence, and that his arrest was reasonably necessary to protect the safety of another and to stop him from committing other offences. The result was that the only remaining issue of fact was whether the Crown had made out beyond reasonable doubt that it was not reasonably practicable for Senior Constable Kinghorne to provide the accused with the reason for the exercise of the power of arrest. His Honour found Senior Constable Kinghorne and Dekort to be "both very impressive witnesses". He recorded Senior Kinghorne's evidence that he did not wish to advise the appellant of the reason for the arrest because the latter had been kneeling facing the house, looking away from the street from which the officers had been approaching, and that "I'd like to have that conversation to his face", and that he did not give the reason thereafter because "I was more concerned about our safety at that point". He said that he did not advise that he was a police officer because his car had pulled up with lights and siren activated and he was in full uniform.
6. The primary judge found that it would have been reasonably practicable for Senior Constable Kinghorne to have provided the reason for the arrest before commencing the act of the arrest. Consequently, the arrest was unlawful; because s 202(2) of the Law Enforcement (Powers and Responsibilities) Act requires, among other things, that the officer must provide the reason for the exercise of a power of arrest "as soon as it is reasonably practicable to do so". His Honour rejected the Crown's submission that Senior Constable Dekort's conduct was separate, that she only became involved when the appellant assaulted Senior Constable Kinghorne, and that she was exercising a power of arrest because the appellant was assaulting a police officer or resisting arrest. His Honour said: I do not accept that the conduct of the police officers can be separated in that way. Whilst Senior Constable Kinghorne was the leading officer in the arrest, both police officers attended the premises for the purposes of arresting the accused for domestic violence offences.
7. His Honour relied on what was said to be an acceptance by the High Court (in fact this was a passage from the reasons of McHugh J) in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [120] that: Hedigan J held that, although the second officer acted in good faith, his conduct was also unlawful and he was not acting in the execution of his duty when assisting the first officer to effect an unlawful arrest.
8. The primary judge concluded, after summarising the evidence: Specifically, I find that it was reasonably practicable for Senior Constable Kinghorne to provide the reason for arrest before commencing the act of arrest. This renders the arrest unlawful. It follows that the police officers were not acting in the execution of their duties when they were violently assaulted by the accused. Accordingly, the verdicts on count 3 and 5 of the indictment are not guilty. I make the following orders: the accused is acquitted of counts 3 and 5.
9. His Honour's findings are taken for all purposes to have the same effect as a jury's verdict on counts 3 and 5 on the indictment: Criminal Procedure Act 1986 (NSW), s 133(1). It was common ground when the appeal was heard that the arrest sought to be effected by Senior Constable Kinghorne was to be taken to have been unlawful; any other position would tend to undermine the acquittal which is conclusively established by the (deemed) verdict.
10. His Honour's reasons explaining why the arrest did not comply with s 202(2) were delivered in open court, in the presence of the appellant's solicitor. There is nothing to suggest that a written form was not provided shortly thereafter. But in any event, it must have been clear to everyone that the main point argued by the appellant at the trial - that the failure to state the basis for the arrest rendered the arrest unlawful and counts 3 and 5 bad - had succeeded.
11. The proceedings came back for sentence on 12 and 24 June, 20 July and 26 August 2022. Those hearings proceeded on the basis that sentence would also be imposed for the two s 58 offences on the s 166 certificate to which the appellant had pleaded guilty.
12. Those pleas had been made with the benefit of legal advice. The appellant's solicitor gave evidence in an affidavit read on the appeal that the pleas were made in early March 2022, in order to obtain the benefit of a 10% discount. The timing of that plea was said by the solicitor to have been important, because by reason of s 25D(2)(b) of the Crimes (Sentencing Procedure) Act (NSW), he needed to have pleaded guilty at least 14 days before the first day of the trial in order to obtain a reduction of 10%.
13. A sound recording of the appellant giving those instructions on 4 March 2022 (and which included the appellant confirming that he authorised his solicitor to make the recording) was also tendered, and his solicitor's affidavit was read, which confirmed that those instructions accorded with the advice given by both the solicitor and barrister then appearing for him. The solicitor gave this evidence: I recall agreeing with [counsel] that DIMOND and DUCKETT were acting in the execution of their duty. … There was a break in time between the initial unlawful arrest made by DEKORT and KINGHORNE and the later arrest made by DIMOND and DUCKETT. They arrived at a point where Mr KERSHAW had assaulted officers DEKORT and KINGHORNE and was continuing to struggle with them. I believed that officers DIMOND and DUCKETT were entitled to arrest Mr KERSHAW and his resistance to their arrest was unlawful. Though there was significant overlap in the factual circumstances of sequences 8 and 10 I did not believe there was any duplicity in the charges as each officer was individually resisted in their attempt to arrest Mr KERSHAW.
14. The primary judge delivered reasons for sentence on 27 October 2022. Early on in the course of giving reasons, the primary judge interrupted himself as follows: HIS HONOUR: Before I continue, Mr Kershaw, do you adhere to your guilty pleas in relation to the matters I've just referred to? OFFENDER: Yes, that's how I understood it to be, Your Honour HIS HONOUR: Thank you, I just have to check that because there have been problems in other cases.
15. It will be convenient to defer a summary of the matters to which his Honour had regard when imposing sentence. For present purposes, it suffices to say that the indicative sentences of imprisonment stated pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were: 1. count 1: intimidation of Mr Jerome - 18 months; 2. count 2: assault Mr Jerome - 12 months; 3. count 4: assault occasioning actual bodily harm (SC Dekort) - 30 months; 4. count 6 - assault occasioning actual bodily harm (SC Kinghorne) - 24 months; 5. s 166 certificate: destroy/damage property - 4 months; 6. s 166 certificate: resist officer in the execution of duty (C Duckett) - 9 months; and 7. s 166 certificate: resist officer in the execution of duty (C Dimond) - 9 months.
16. All of those indicative sentences incorporated discounts of 10% for the appellant's plea, save that count 6 incorporated a discount of 5%. (This was because the appellant indicated a willingness to plead guilty to count 4 but not count 6 in early March, and changed his attitude in relation to count 6 on around the first day of the trial later that month; the resultant discount of 5% reflected s 25D(3)(c) of the Crimes (Sentencing Procedure) Act. No issue was taken in this Court as to the discounts for the appellant's guilty pleas.)

The appeal to this Court

1. One aspect of the proceeding in this Court is procedurally somewhat unusual. The appellant by grounds 3-6 seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed. However, by grounds 1 and 2 he claims a right of appeal by the combined operation of ss 5AA and 5AD of that Act from the convictions, and indeed he asserts an entitlement as of right to withdraw his guilty pleas.
2. Sections 5AA and 5AD of the Criminal Appeal Act relevantly provide as follows: 5AA Appeal in criminal cases dealt with by courts in their summary jurisdictions (1) A person - (a) convicted of an offence, or … by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order. … (4) The Court of Criminal Appeal in proceedings before it on an appeal under this section may - (a) confirm the determination made by the Supreme Court in its summary jurisdiction, or (b) order that the determination made by the Supreme Court in its summary jurisdiction be vacated and - (i) make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal, or (ii) order a new trial in such manner as the Court of Criminal Appeal thinks fit. … 5AD Appeals as to related or back up summary offences in criminal cases dealt with by the Supreme Court or the District Court (1) Section 5AA applies to and in respect of a person convicted of an offence by the Supreme Court or District Court in the exercise of its jurisdiction under Division 7 of Part 3 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as it applies to a person referred to in section 5AA (1). (2) For the purposes of this section, a reference in section 5AA to the Supreme Court is to be construed as including a reference to the District Court. (3) The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised by such single judge of the Supreme Court as the Chief Justice may direct unless - (a) the judge considers that the appeal should be dealt with by the full court and notifies the Chief Justice accordingly, or (b) an appeal is lodged under this Act in relation to the related indictable offence.
3. Those provisions operate as follows. The District Court convicted the appellant of the two s 58 offences in the s 166 certificate and was exercising its jurisdiction to deal with summary offences pursuant to Division 7 of Part 3 of Chapter 3 of the Criminal Procedure Act. Accordingly, s 5AD(1) applied, and in accordance with s 5AD(2), the right of appeal conferred by s 5AA was applicable as if a reference to the "Supreme Court" were a reference to the "District Court". In that fashion, s 5AA(1)(a) conferred a right of appeal from the convictions for the two s 58 offences, and the powers in s 5AA(4) were thereby made available. By reason of s 5AD(3), the Court of Criminal Appeal has been constituted as the same court which is to hear the appeal against the aggregate sentence imposed for the convictions including those pursuant to the related indictable offences (namely, counts 1, 2, 4 and 6 on the indictment).
4. Although s 5AA(1) confers a right of appeal, it does not specify the grounds which may be invoked; contrast s 6(1). But it is well established that an appeal under s 5AA requires error to be demonstrated: see the decisions collected in ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 at [13]. In Gilmour v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399 at [19] and Parker v R [2023] NSWCCA 234 at [14] this Court said that error must be demonstrated "as a threshold point". It is far from clear that the appellant has an entitlement to set aside his conviction following his guilty pleas, even if the advice he received at the time is shown to be incorrect. But this Court received no submissions from the appellant on the point, which may have been at least in large measure due to the fact that the ground of appeal explicitly accepted that the appellant needed leave, while the unelaborated oral submissions maintained an entitlement as of right.
5. On the view I take, it is unnecessary to address in any detail the principle applied to the withdrawal of a plea in the exercise of the District Court's summary jurisdiction, and as Garcia-Godos v R; MH v R [2023] NSWCCA 145 shows, the position is not free from complexity. It will suffice for present purposes to proceed on the basis which accords with the appellant's submissions, namely, that the appellant must establish a miscarriage of justice if he were not permitted to withdraw his plea.

Ground 1

1. Ground 1 maintains that the primary judge erred in accepting guilty pleas for the two counts of resisting an officer in the execution of duty which were before the Court on an s 166 certificate. Its essence is that the primary judge could not have been satisfied of the appellant's guilt of either count as a consequence of the finding that the arrest sought to be effected by Senior Constables Dekort and Kinghorne was unlawful.
2. In substance, the appellant sought to rely upon his acquittal of the charges of assaulting Senior Constables Dekort and Kinghorne based on the finding that the arrest by Senior Constable Kinghorne was invalid because of non-compliance with s 202(2) of the Law Enforcement (Powers and Responsibilities) Act to achieve the same result with the charges of resisting Constables Dimond and Duckett.

Appellant's submissions

1. The appellant invoked the passage from McHugh J's judgment in Coleman v Power reproduced above. He contended that all four officers were seeking to arrest the appellant, but that there was only a single arrest, which was already established to have been unlawful. He said that the entirety of the conduct of Constables Dimond and Duckett was to be regarded as participating in the same invalid arrest which had been initiated by Senior Constable Kinghorne. It was put thus: If what [McHugh J in Coleman v Power] is correct that these authorities show that once the conduct of an officer is unlawful the level of physical response offered by an accused is irrelevant to a charge involving the execution of duty or the performance of duty, which is the very decision his Honour relied upon in rejecting the suggestion that Senior Constable Dekort's intervention was still the furtherance of an unlawful arrest, it's difficult to see how then one could then distinguish then the acts of the police officers Dimond and Duckett who arrive about five minutes after the incident commenced and in fact perfect the arrest by applying the handcuffs on the applicant. True it is in the interim there is an assault on both Officer Dekort and Officer Kinghorne, and true it is the accused entered a guilty plea to those charges and that guilty plea is not being challenged in this Court, but the question remains when Diamond and Duckett arrived on the scene could they be said to be acting in the execution of their duties in completing an arrest that itself was unlawful.
2. Counsel accepted that there would come a point when ongoing resistance ceased to be lawful and became an assault. He gave the example of an officer arresting a person by placing a hand on the person's shoulder, following which the person produced a handgun and threatened the officer. The possibility that there was an intervening act was sought to be dismissed on two bases: that on the evidence there was continuous resistance from the appellant, as well as by reason of the absence of specific findings: One of the difficulties we say in this case is even if his Honour is right and there is in fact an intervening act, that is the assault on, for example, Senior Constable Dekort, his Honour in passing his sentence on the applicant never made or dealt with that distinction, because there is in fact a distinction, that is he is to be charged with resisting arrest as a result of him being arrested for the assaults on Officer Dekort, and of course his criminality can only relate to events that occurred once Officers Dimond and Duckett arrive on the scene. He can't be held as part of that charge responsible for conduct that occurred beforehand and nowhere in his Honour's judgment does he engage in that type of reasoning, indeed he barely deals with reasoning at all in relation to the charge of resist arrest.
3. Counsel candidly acknowledged that the absence of findings reflected the fact that none of this had been put to the primary judge. Nonetheless, he contended that the convictions amounted to a miscarriage of justice: There were a number of failures in this case and I don't seek attribute them all home to his Honour by any means, far from it, but nonetheless his Honour in effect made a finding that the arrest was unlawful and then failed in the course of what followed to apply that finding to the proceedings which followed at that time and that included in relation to this question about these two charges of resist arrest.

Consideration - the elements of (former) s 58

1. The starting point must be the different offence with which the appellant was charged. Section 58 of the Crimes Act, in the form it took prior to 18 October 2022, was as follows: 58 Assault with intent to commit a serious indictable offence on certain officers Whosoever - assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff's officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years.
2. The current form of s 58 is quite different. It provides: 58 Assault with intent to commit a serious indictable offence Whosoever - assaults any person with intent to commit a serious indictable offence, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years.
3. The second offence created by the current form of s 58, assault with intent to resist or prevent the lawful apprehension or detainer of a person, has as an element "the lawful apprehension or detainer" of a person. If the appellant had been charged under that section, the Crown would have had to have established that element, the analysis would have been quite different and the submissions advanced by the appellant might have had more force.
4. However, in the form s 58 took on 16 June 2020, which is reproduced above, the section created five distinct offences, and not merely the three identified in each paragraph separated by the disjunctive "or". Significantly, the second paragraph, which commences "assaults, resists or wilfully obstructs any officer while in the execution of his or her duty …" must be regarded as creating three separate offences. That is clear as a matter of ordinary meaning, for assault, resistance and wilful obstruction are three separate concepts, and though some conduct may amount to all three, others may fall only within one. Many decisions have proceeded upon that basis, including The Queen v Reynhoudt (1962) 107 CLR 381; [1962] HCA 23, where it is also explained how the provision derives from s 38 of the Offences against the Person Act 1861 (24 & 25 Vict c 100).
5. The element of the offence under s 58 which was charged and particularised in the Court Attendance Notices was not resistance to a lawful arrest. It was resistance to a constable in the exercise of his or her duty. This is quite different.
6. There are at least two ways in which Constables Dimond and Duckett were executing their duties after they arrived at Mr Jerome's premises at 10:29pm on 16 June 2020 which are distinct from the appellant's characterisation of assisting Senior Constable Kinghorne's arrest. One was in the execution of their duty to keep the peace. A second was in seeking to arrest the appellant for assaulting the Senior Constables who were already at the scene.

The duty upon police officers to keep the peace

1. Police officers have a duty to keep the peace. One source of that duty is the officer's oath or affirmation of office, which (at the relevant time) included in reg 7 of the Police Regulation 2015 (NSW): that I will cause Her Majesty's peace to be kept and preserved, and that I will prevent to the best of my power all offences against that peace …
2. There can be no doubt that there is such a duty, and the appellant did not for a moment deny it existed. There is no occasion for exploring the source and nature of the duty, which as the joint judgment in Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 observed at [52]-[53], is quite complex. Aspects of the antiquity of the duty are considered in State of NSW v Tyszyk [2008] NSWCA 107.
3. In seeking to restrain the appellant when he was struggling with Senior Constables Dekort and Kinghorne, those officers were executing that duty. The position recalls the events in Robson v Hallett [1967] 2 QB 939. Sergeant McCaffrey had been invited into a house, but Police Constables Paxton and Jobson were not, and remained outside. The licence to enter which had been granted to the Sergeant was revoked, and as he was leaving, he was attacked by two of the occupants of the house. When the Police Constables saw this, they rushed to his assistance, and following a melee, the two occupants were convicted of assaulting one of the Police Constables. The appeal was brought on the basis that the arrest by the Sergeant was unlawful, and the assault committed on the Police Constable was not committed while the constable was acting in the execution of his duty. In response, it was put that "[w]hen the other two police officers saw Sergeant McCaffrey being assaulted they had a duty to go to help him, and a duty to endeavour to prevent further assaults, and to try to prevent a breach of the peace": at 948-949.
4. In dismissing an appeal from those convictions, Lord Parker CJ said at 953: [the Police Constables] were in this little garden seeing McCaffrey set upon by Thomas, and a general melee developing. It seems to me quite impossible in those circumstances to say that they were not acting in the execution of their duty in coming to the assistance of Sergeant McCaffrey, and also avoiding any further breach of the peace.
5. Diplock LJ said at 954: In the case of Police Constables Paxton and Jobson, once a breach of the peace was taking place under their eyes, they had not only an independent right but a duty to go and stop it …
6. Another similar decision is Horne v Coleman (1929) 46 WN (NSW) 30, where an off-duty officer who was not in uniform was asked to cause a man who was noisy and abusive to leave a theatre. A scuffle ensued when the officer asked him to leave. It was held on appeal from a summary conviction by Davidson J that the officer was acting in the execution of his duty to keep the peace.
7. The peace was unquestionably not being kept when Constables Dimond and Duckett arrived at the scene at 10:29pm on 16 June 2020. In seeking to restrain the appellant, those officers were executing their duty.
8. That characterisation of their conduct is wholly independent of the validity or invalidity of the arrest which Senior Constable Kinghorne had sought to effect.

The separate power to arrest the appellant for assaulting the Senior Constables

1. Secondly, Constables Dimond and Duckett were well entitled to form the view that the appellant should be arrested for committing serious assaults upon Senior Constables Dekort and Kinghorne. They were authorised to apply force to do so. It was not reasonably practicable for them to state that reason before doing so. It follows that they were executing their duty.
2. To reiterate, there was an important distinction between the charges for which the appellant was acquitted in respect of his assaults upon the senior constables, and the charges which are the subject of this ground of appeal in respect of his resistance to the constables. An element of the former, but not the latter, was that there was a lawful arrest. The latter charges turned merely upon whether, at the time the appellant was resisting, the constables were executing their duty. Even if they were taking steps to effect their own arrest, and even if that arrest turned out to be unlawful because as soon as reasonably practicable the appellant was not told why he was being arrested, that did not prevent the actions of the constables from being actions in the execution of their duty.
3. This point was made in Poidevin v Semaan (2013) 85 NSWLR 758 at [25]: The time for compliance with s 201(1) depends upon whether or not it is practicable to do so before or at the time of exercising the power, or only at some later time. The explicit premise of the section is that there will be some occasions when a compulsive power referred to in s 201(3) may be exercised without being preceded or accompanied by the provision of information in accordance with s 201(1). In those circumstances, there is a lawful exercise of power or, to use the language of s 546C, the lawful execution by a police officer of his or her duty, notwithstanding the absence at that time of the information required by s 201(1). Counsel for the respondent accepted that in circumstances where it was not practicable to provide the s 201(1) information, the offence was committed at the time of the hindering or resistance.
4. True it is that s 201 was differently worded, but not in a way which is material to the applicability of that reasoning to the present facts. If Constables Dimond and Duckett were exercising a power on their own part to arrest the appellant, then they were executing their duty, and this element of the offence under (former) s 58 is made out.
5. This was raised during the hearing in the following exchange: WILSON J: … [T]here doesn't seem to have really been a point at which, well, certainly for the second part of it where the other two police turn up, your fellow's not effectively restrained at all, that's the whole point of it. EVERS: That's correct. Yes. WILSON J: These two jump in to help their colleagues against a background where they've got information over the police radio that there has already been an incident at a house, a domestic incident between civilians, and when they get there Kinghorne's on the radio saying 'urgent' presumably as in urgent assistance required. I just don't see why that's not these two officers with plenty of reasonable basis effecting or trying to effect their own arrest. EVERS: The short answer is to a large extent I can't cavil with that reasoning except that that's not the reason adopted by his Honour. If his Honour had gone to the process of actually considering a conviction in those very specific terms.
6. To the extent that the appellant sought to rely upon the absence of findings by the primary judge, it does not in my view assist him. There can be no criticism of the primary judge in failing to make findings on matters which were not, by reason of the appellant's guilty pleas, in issue. Nor can there be criticism of the prosecution or defence for not adducing evidence, or not cross-examining on these issues. These were all the ordinary consequences of the appellant's guilty pleas. I cannot accept that it is sufficient, in order for the appellant to establish that there will be a miscarriage of justice if he is not permitted to withdraw his guilty pleas, to point to the possibility that had there been evidence and submissions and findings on the issues which would have arisen had he pleaded not guilty, all of actions taken by Constables Dimond and Duckett would have been regarded as forming part of the initial, invalid arrest sought to be effected by Senior Constable Kinghorne. I shall elaborate this below.

The appellant's submissions to the contrary must be rejected

1. The proposition from the reasons of McHugh J in Coleman v Power upon which the appellant relied turned upon the second constable assisting the first in effecting an arrest which was unlawful. His Honour recorded that "The prosecution claimed the second officer's position was different because he had good reason to believe he was lawfully assisting his partner to effect an arrest for what the second officer assumed was an assault on the first officer". True it is that that the trial proceeded on the basis that Senior Constable Dekort answered that description. But the two difficulties which the appellant must confront before relying on that principle are that (a) he was not charged with resisting an arrest by Constables Dimond and Duckett, and (b) the trial did not proceed on the basis that the latter two were seeking to effect Senior Constable Kinghorne's arrest.
2. For those reasons, the appellant was driven to submit that the conduct of Constables Dimond and Duckett was necessarily to be regarded as wholly subsumed as an aspect of the joint attempt to effect an arrest by Senior Constable Kinghorne, the entirety of which was rendered invalid by his failure to comply with s 202(2). LEEMING JA: Suppose as you say there's a single arrest. EVERS: Yes. LEEMING JA: Carried out by four officers. EVERS: Yes. LEEMING JA: And you say the single arrest is not authorised by law. EVERS: Yes. LEEMING JA: Is the validity of the arrest an element of the s 58 offence? EVERS: In so far as the validity of arrest requires that the officers are acting in the execution of their duties. If they're acting unlawfully, that is outside the execution, they must be acting outside the execution of duties. LEEMING JA: What that submission sounds like is a submission that the only thing officers three and four are doing is participating in a single unlawful arrest. EVERS: Yes.
3. The legal system often needs to address the position where more than one source of power is available to authorise a course of action, such as terminating a contract or exercising public power. Speaking generally, it does not matter if the person exercising the power erroneously believes he or she is entitled to take the course of action based on a source of power which is not available, so long as another source is. Thus Dixon J summarised the decisions supporting the "long established rule of law that a contracting party, who, after he has become entitled to refuse performance of his contractual obligations, gives a wrong reason for his refusal, does not thereby deprive himself of a justification which in fact existed, whether he was aware of it or not" in Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 378; [1931] HCA 21. Likewise, the unanimous judgment in Brown v West (1990) 169 CLR 195 at 203; [1990] HCA 7 said that "the validity of the Tribunal's determinations is unaffected by mistaking the source of the power to make them", citing Moore v The Attorney General (Irish Free State) [1935] AC 484 at 498 and R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 487; [1942] HCA 12. (Of course, in each case much may depend on the nature of the power and the preconditions to its availability.)
4. In the present case it is highly artificial to ascribe by way of legal characterisation the conduct of Constables Dimond and Duckett in the minutes after 10:29pm exclusively to seeking to effectuate an arrest they believed the officers earlier at the scene might have commenced to effect and without the slightest idea whether it might be held after the event not to have been lawful because of non-compliance with the Law Enforcement (Powers and Responsibilities) Act. There are no findings to support that characterisation, and for that reason alone I would reject the appellant's submission. But in any event, viewing all of the evidence to determine as best one can how the conduct of Constables Dimond and Duckett should be characterised, the appellant's contention that they should be regarded as seeking to assist Senior Constable Kinghorne's arrest is implausible. The reality is that they knew that an intoxicated man had assaulted, and was continuing to assault, their colleagues. They had heard reports of this in the minutes before they arrived at the scene, and they saw the struggle on arrival. They were duty-bound to quell the struggle, and they were well entitled to form the view that they should arrest him themselves.
5. I think the better characterisation of what occurred after Constable Dimond's and Duckett's arrival at 10:29pm was immediate action to keep the peace. But in order for there to be no miscarriage of justice, it is sufficient for me to conclude that the constables' intervention to prevent the breach of peace is an available legal characterisation of what occurred. It is also sufficient to conclude that the constables' intervention to effect an arrest based on the appellant assaulting the two senior constables is an available legal characterisation. It follows that there is no miscarriage of justice in permitting the appellant's guilty pleas to stand.

Ground 2

1. Ground 2 is that his Honour erred in convicting the appellant on two counts of resist officer arising from the same conduct. Its essence is that the appellant's conduct in resisting arrest was one single actus reus which could not give rise to two counts.
2. This ground turned on the fact that the counts were framed in terms of resisting officers in the execution of their duty; the appellant conceded that if in the course of resisting arrest there had been separate assaults on two police officers attempting to make an arrest, that would give rise to two separate offences.

The appellant's submissions

1. The appellant relied upon what had been said in the joint judgment of O'Bryan, Dean and Hudson JJ in R v Galvin (No 2) [1961] VR 740 of the same words in a comparable context in s 40 of the Crimes Act 1958 (Vic), namely, The word "resist" carries with it the idea of opposing by force some course of action which the person resisted is attempting to pursue. To "resist" such a course of action, the person said to resist must know what that attempted course of action is. This requires the existence of a specific intent on the part of the alleged resistor. The composite expression "resist a member of the police force in the due execution of his duty" connotes an intention to oppose or restrain a member of a particular class in the community and while that member is acting in a particular way.
2. Part of these submissions turned on there being a single duty being executed by all of the police officers, namely, to arrest the appellant: WILSON J: So if there are three police officers seeking to effect the arrest, that is three police officers in the execution of duty, three charges. EVERS: I suggest that they're executing the same duty. WILSON J: All right. EVERS: They have a power of arrest which they are executing jointly. There's not three separate duties, they are acting under the one authority or one duty, exercising the same power, they're simply doing it jointly.
3. Particular reliance was placed upon what had been said in Hull v Nuske (1974) 8 SASR 587 by Walters J: It seems to me that the offence of resisting a police officer in the execution of his duty is a "conduct offence" and that the actus reus can properly be made up of behaviour consisting of the one set of circumstances which form the central feature of the offence. The fact that the behaviour alleged to constitute a resistance of a police officer is aimed or directed at two police officers, lawfully engaged in the joint performance of the one and the same duty, does not in my opinion lead to the consequence that there are two independent actus rei which may be separately charged. In my view, it would be going too far to say that in relation to each officer, the external facts arising out of the one set of circumstances and involving a resistance of that police officer, in the execution of a duty being lawfully performed by him jointly with another police officer, can lead to the commission of two distinct offences. I think an unjust result would follow if an offender were to be convicted of two or more separate offences arising out of a continuous act or proceeding which gave rise to a resistance, at the same time, of more than one police officer in the execution of duty.
4. However, that passage is about duplicity. Immediately following the sentence relied upon by the appellant is the conclusion: It seems to me, therefore, that in the circumstances of this case, the conviction for breach of s 6(2) of the Act is not bad for duplicity, simply because it is recorded in the language of the complaint. It follows that I do not think the complaint was defective; it disclosed only one offence.
5. It was also said that another way of advancing this ground was to observe that the second count of resisting a police officer arising out of the same facts and circumstances gave rise to double jeopardy such that a plea in bar of autrefois convict would apply. It was said by reference to Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [20] that the elements required to be established in proof of each offence were the same, and "[t]he name of the officer was a mere particular that was not essential to proof of the crime, save that it was necessary that there was proof that a person resisted was in fact a police officer".
6. The appellant also sought to rely upon the reasons given when imposing an aggregate sentence, in support of the proposition that he had been not merely exposed to double jeopardy for the same offending but also to double punishment. His Honour had said when addressing the question of totality that "the accumulation must reflect the fact that there were five victims". This last submission goes nowhere. I fail to see how what was said 6 months later when sentence was imposed in any way impugns the second conviction. Another way of putting this is that whether or not this ground is good or bad is something that can be determined at the time the finding of guilt is made.

The Crown's submissions

1. The Crown submitted that the elements of the offence under s 58 included the act of resistance, the identification of person who was an "officer", that the person was an "officer" within the meaning of the provision, and that he or she was executing his or her duty at the time of the resistance. The Crown relied on the discussion by Dixon J in Johnson v Miller (1937) 59 CLR 467 at 489-490 based on the offence created by s 209 of the Licensing Act 1932 (SA) of a licensee "out of whose licensed premises any person is seen coming during any Sunday", which proceeded on the basis that the particular person was an element of the offence. Save for emphasising that the question in each case must turn on the elements of the offence, Johnson v Miller does not greatly help, for it is clear that s 209 of the South Australian statute created a separate offence for each person seen coming out of licensed premises on a Sunday. This is the point made by Barr and Hall JJ, on which the Crown also relied, in Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; 165 A Crim R 151 at [395]: The question in these proceedings as to possible duplicity, ambiguity or uncertainty calls for close attention to two matters: (a) Firstly, to the specific characteristics of the substantive offence in Count 1. (b) Secondly, to the particulars pleaded in the indictment.
2. The Crown also submitted that there could be no absolute rule in such cases, and indeed that there could well be circumstances where an accused was prejudicated by a single charge which particularised multiple officers, and that there was no obligation to charge a single offence when an accused resists more than one officer.
3. Finally, the Crown submitted that the offences did not arise from the same conduct, saying: evidence showed that Constable Dimond sought to control the applicant's legs which he resisted by kicking. Constable Duckett used wrist locks and held his arms, against which the applicant moved to attempt to free himself.

Consideration

1. Constable Dimond's evidence was led in chief, by reference to her statement. She was not cross-examined. Constable Duckett's statement was tendered without objection, and he was also not cross-examined. It was uncontroversial that Constable Duckett used wrist locks, and applied handcuffs. It was also uncontroversial that after being handcuffed, it was Constable Dimond who put on gloves and searched the appellant's pockets to see if he had items which could cause harm and after completing her search, Constable Dimond described the following: KERSHAW said: "What have I done? I haven't assaulted any police officers. You fuckwits turn up and done … get off me you fuckwit!" I had to readjust again in order to keep his feet from kicking out and apply full body pressure on him. KERSHAW said: "I just want to breathe" DIMOND said: "You can breathe, you're on your side" KERSHAW said: "You're a fuckwit, get off my arm you fuckwit, I've lived with my mum and partner for years, I'm not violent" He continued to yell very loudly and attempt to kick out and move from being held.
2. To be clear about this, no part of Constable Dimond's statement (which was tendered), or for that matter her evidence in chief, suggests that she was involved in restraining the appellant prior to his being handcuffed.
3. Thus the Crown case was that there were separate acts of resistance to each of Constables Dimond and Duckett. The resistance to Constable Dimond was different in nature, and subsequent in time, to the resistance given by the appellant to Constable Duckett when he was being handcuffed.
4. It follows that this ground is not made out on the facts, and it is unnecessary to address cases where an offender by the same conduct resisted the joint efforts of multiple police officers. There was no miscarriage of justice in the appellant being convicted of resisting Constable Duckett while he was seeking to handcuff him (being conduct in which Constable Dimond was not directly involved), and also being convicted of resisting Constable Dimond for kicking and struggling against her after he had been handcuffed.
5. One final thing should be noted. It is difficult to see that the success or failure of this ground could have any material impact upon the sentence imposed on the appellant. If contrary to the view I have formed the appellant should only be convicted of a single offence of resisting Constables Dimond and Duckett in the execution of their duty, the sentence would be substantially the same as for two offences of resisting each of those officers. Everything happened in a short period of time at the same place as part of a connected sequence of events. If there were to be two actual sentences, they should be substantially concurrent, and if an aggregate sentence is imposed, there should be a very high degree of notional concurrency.

Ground 3

1. This ground was that the primary judge erred in the assessment of the objective seriousness of all counts involving police officers by failing to take into account his finding that the arrest of the applicant was unlawful.
2. There were three strands to the appellant's submissions on this ground. The first was that insofar as the arrest was unlawful, the appellant was entitled to resist arrest. The second was that the appellant was entitled to use reasonable force to resist his arrest. The third was that this materially impacted the assessment of the objective seriousness of the offending.
3. For the reasons already given, the conduct of Constables Dimond and Duckett was at all times lawful. It follows that this ground has no application to the convictions involving those officers.
4. Also for the reasons given above, the unreasonable overreaction by the appellant happened seconds after Senior Constable Kinghorne laid his hand upon the appellant. It follows that any period of time in the second or so after the attempt to arrest the appellant during which the appellant was entitled to resist with reasonable force had no material contribution to the conduct which constituted these offences of assault occasioning actual bodily harm. The entirety of the actual bodily harm was a manifestly unreasonable response to the purported arrest.
5. For those reasons, I fail to see how the unlawfulness of the arrest was a relevant sentencing consideration for any of the offending. Counsel who appeared in the sentencing proceedings was correct not to rely upon it. In this part of the appeal, the appellant relies on s 5(1)(c) of the Criminal Appeal Act, and requires leave. I would not grant leave to complain about the failure to take into account a consideration which is irrelevant to the sentencing and which was not relied upon at first instance.

Ground 4

1. This ground was that the primary judge "erred in failing to take into account the impact of the appellant's brain injury or impairment in the sentencing process".
2. The reasons of the sentencing judge address at length the evidence adduced on the appellant's behalf by Dr Matthew Conroy, a clinical neuropsychologist, who explained that either because of his premature birth, or because of his involvement (as a pedestrian) in a motorcycle accident, and indeed, according to Dr Conroy, most likely because of the combination of the two, he suffered from several deficiencies in learning and recollection. Dr Conroy's report stated that his speed across simple scanning, cancellation and copying tasks was at the 23rd percentile while his psychomotor speed on a simple sequencing task was within the 10th-20th percentile. On a visuospatial task of problem-solving, the appellant's initial reasoning fell within "the exceptionally low range" (that is less than the first percentile), while his overall reasoning and cognitive flexibility were also within the exceptionally low to below-average range. Dr Conroy concluded that "in psychometric testing there was some evidence of deficits in reasoning, problem solving, planning and organisation and perseverative thinking". The report concluded: The Agreed Facts indicate that Mr Kershaw was intoxicated at the time of the offences. Acute intoxication is known to impact decision-making, that people with brain abnormalities are particularly vulnerable to the effects of psychoactive substances such as alcohol and other drugs … His use of alcohol at the time of offending is likely to have exacerbated any underlying executive deficits and may have further impacted his ability to make rational decisions.
3. Plainly the ground as drafted in the notice of appeal is too broadly expressed, because a deal of attention was paid by the sentencing judge to Dr Conroy's opinions. As refined in submissions, there were two aspects to this ground: the fact that despite Dr Conroy's evidence, the sentencing judge did not accept that the appellant's intellectual deficits played any causal role in the offending, and the diminished need for general deterrence and the more burdensome way in which the appellant's time in custody would be served had been taken into account in the reasons.
4. Dr Conroy's evidence was addressed in the remarks on sentence as follows: Dr Conroy also acknowledged that the offender suffered acute intoxication by alcohol at the time of the offending and stated, "His use of alcohol at the time of the offending is likely to have further exacerbated any underlying deficits and may further impacted his ability to make ration decisions" [sic]. I note that following the offending his blood alcohol level was assessed at 0.25 mg/l. That is five times the legal limit for driving. No attempt was made by the expert to separate his medical conditions from his state of intoxication at the time of the offending. In those circumstances the extent to which any medical condition contributed to the offending cannot reliably be determined. Whilst I might infer from the expert's opinion that the medical conditions did contribute such an inference would be no more than conjecture given the extent of the offender's intoxication. The effect of self-induced intoxication is not a mitigating factor. Notwithstanding the expert opinion is a relevant consideration in considering the overall circumstances of the offending and as to whether the offender's time in custody will be more burdensome. I note that the offender is also a person with a physical disability. As a result of a road accident in 2012 the offender lives with a partially amputated right leg and still experiences chronic pain in both legs. This will make his time in custody harsher. [Emphasis added]
5. The Agreed Facts to which Dr Conroy referred were in evidence. They simply asserted that the appellant was "intoxicated". A blood alcohol level of 0.25 mg/l is an extremely high level of intoxication in most people, and there is nothing to suggest that the appellant was unusual in that respect.
6. The sentencing judge was correct to observe that Dr Conroy did not express an opinion as to the extent to which the cognitive deficit had any role to play on the evening of 16 June 2022 when he was at that level of intoxication. Nor, as the Crown observed, was it incumbent on the sentencing judge to accept the opinion expressed by Dr Conroy, even though it was not controverted by other expert evidence or tested in cross-examination. It was open to his Honour to form the view that the cognitive deficits played no role in the appellant's immediate violent over-reaction to Senior Constable Kinghorne, which was entirely attributable to his consumption of alcohol.
7. The second way in which this ground was advanced has more force. The effect of the appellant's cognitive deficits operates in a variety of ways when imposing sentence and the attention given to those ways by the sentencing judge is relevantly slight. In fairness, it should be said that that was consistent with the way this issue was treated by the submissions of counsel then appearing. Nevertheless, the sentencing judge expressly had regard to the expert opinion in considering the overall circumstances, and as well observing that his time in custody would be more burdensome. Undoubtedly, more could have been said. But, on balance, I have concluded that this ground is not made out. If I am wrong about that, it is an error on which nothing turns, in light of the conclusion I have reached in ground 5.

Ground 5

1. In the notice of appeal, this ground is expressed broadly: "His Honour erred in failing to take into account Mr Kershaw's subjective case". In those broad terms, it is not made out; a great deal of the reasons address his subjective case.
2. However, in written and oral submissions a more nuanced approach was taken. The principal points made were that there was limited attention given to the favourable findings of remorse, and virtually no attention was given to the steps taken by the appellant toward his rehabilitation. Those points had been addressed at some detail in the written and oral submissions before the primary judge. They included the appellant's long-standing difficulties with alcohol abuse, coupled with his oral evidence on oath that he had stopped all consumption of alcohol. In August 2021, the appellant began psychological treatment and trauma counselling. By the time of sentencing, he had attended eight sessions and was found to have engaged well with the program. His treating psychologist said that "at the present time Mr Kershaw is motivated to make changes to his life. It would be beneficial to capitalise on his courage, readiness for change, his current attitude and orientation toward making lifestyle changes, and engaging in the necessary treatment he requires to re-engage in healthy life choices". There was further reference to the supportive family environment the appellant enjoyed in the form of his mother, sister and partner.
3. Save for a reference as a factor contributing to the finding of special circumstances that the appellant "would benefit from rehabilitation and treatment in the community", no mention was made of any of this material, which was both uncontroversial and squarely relevant to the purposes of sentencing. Enough has been said to conclude that this ground has been made out. The reasons failed to have regard to a highly relevant consideration, namely the actual steps towards rehabilitation which had been undertaken subsequent to the offending.
4. Accordingly, it will be necessary to re-exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. No purpose is served by addressing the final ground, which was that the sentence was manifestly excessive.

Resentencing

1. In exercising this Court's independent discretion to resentence, I shall proceed on the basis of the material before the sentencing judge, his Honour's unchallenged factual findings and further evidence of the appellant's post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9].
2. Two affidavits were read on appeal, which were not available to the primary judge, on the "usual basis" described in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 in the event that the appeal succeeded. They disclosed that he has continued to be in pain from the injuries suffered from the motorcycle accident, and is of the view that the medical attention he is receiving is inferior to what he would receive if he were at liberty. He is also not eligible for such educational or behavioural programs as are available at the South Coast Correctional Centre, because they are addressed to inmates who do not speak English, or are high-risk offenders.
3. The case note reports made available to the appellant's solicitor disclose no offences in prison, and regular contact with mental health services. He complains of ongoing pain from the metal plates in his leg and ankle which are the consequence of the accident in 2012, especially in cold weather, as a result of which he also finds it difficult to exercise.
4. The sentencing judge addressed the injuries sustained by each Senior Constable in detail, and no submissions were made bearing on those findings. Sentencing in this Court should proceed on the same basis, namely, that Senior Constable Kinghorne sustained pain in the groin area, erythema to the right cheek, a mid bilateral periorbital haematoma, swelling to his right hand, weakness in his right leg, injury to the metacarpal joint of the right hand, tenderness to the left hip and pain in the thoracic spine. Senior Constable Dekort sustained persistent headaches, bilateral neck pain and soft tissue damage, dizziness, bilateral leg weakness comprising actual bodily harm and damage to her lymph nodes.
5. There is no reason to depart from the findings of objective seriousness made by the sentencing judge, which were that counts 1 and 2 concerning Mr Jerome fell "just below the mid-range", count 4 (actual bodily harm to Senior Constable Dekort) fell just above the mid-range, count 6 (actual bodily harm to Senior Constable Kinghorne) within the mid-range, the damage to property was at the low range, and the two offences of resisting Constables Dimond and Duckett in the execution of their duties just above the mid-range.
6. There were favourable findings of remorse. Notwithstanding the application made in this Court to withdraw the guilty pleas to the charges involving Constables Dimond and Duckett, that was based on a purely legal argument, and I shall proceed on the basis, favourable to the appellant, that it does not preclude his reliance on the same findings. There are good prospects of rehabilitation, which are linked to his appreciation of the wrongfulness of his conduct and his abstention from alcohol.
7. The sentencing judge correctly observed that general deterrence plays an important role in cases such as this, and that the appellant's conduct which showed a complete disregard for the law called for strong denunciation. His Honour observed that "the two primary police victims were deeply affected by the offender's conduct", and harm was also caused to the others involved.
8. In Re Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196 at [22], Spigelman CJ, with the agreement of Wood CJ at CL, Grove, Sully and James JJ, said that: Offences involving assault of police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent upon the courage of police officers for protection of lives, personal security and property. The courts must support the police in the proper execution of their duties and must be seen to be supporting the police, and their authority in maintaining law and order, by the imposition of appropriate sentences in cases where assaults are committed against police.
9. Similarly, Johnson J, with the agreement of Macfarlan JA and Blanch J, said in McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at [77] that: In cases involving assault against police, there is a need to give full weight to the objective of general deterrence and, accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances, are generally appropriate in such cases.
10. That denunciation and general deterrence is achieved by a substantial full-time custodial sentence. There should be absolutely no doubt that resistance to police officers which inflicts actual bodily harm upon them will almost inevitably lead to substantial sentences of full-time imprisonment.
11. I would also make a finding of special circumstances, and, having regard to the post-sentence evidence of the appellant's conditions in custody and his steps towards rehabilitation, I would go slightly further than did the sentencing judge.
12. That said, even having regard to the difficulties experienced by the appellant in custody, and the steps he has taken towards his rehabilitation, I would approach sentencing somewhat differently. First, I have difficulty with the indicative sentences for the counts of occasioning actual bodily harm upon Senior Constables Dekort and Kinghorne, of 30 months and 24 months (including a 10% and 5% reduction for the late pleas). The notional starting points on which the sentencing proceeded are a little obscure (just less than 2 years and 9 months and just more than 2 years and 1 month). Bearing in mind the maximum penalty of 5 years imprisonment, I would increase those indicative sentences to 32 months and 28 months (reflecting starting points of 3 years and 2½ years and rounding down). Secondly, bearing in mind that the totality of the offending occurred in around an hour, and most occurred in a 15 minute period, I think there should be a greater (notional) level of concurrency, resulting in a slightly lower aggregate sentence. In particular, the two indicative sentences of 9 months for resisting Constables Dimond and Duckett should be notionally almost wholly subsumed in each other. I see no occasion to alter the indicative sentences for the counts involving Mr Jerome, or the destruction of property offence.
13. Having regard to the steps already taken and the significant prospects of rehabilitation, and the hardship encountered during his period of imprisonment because of his physical disabilities and cognitive deficit, I would impose an aggregate sentence of 5½ years' imprisonment, with a non-parole period of 3½ years. The sentence should be back-dated to 17 October 2021, which was the starting date for the sentence originally imposed by the District Court, and reflected the period of time the appellant spent in remand before trial. The earliest date on which the appellant is eligible for parole is 16 April 2025.
14. Although I would increase some of the sentences indicated pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedures) Act, no "Parker warning" (cf Parker v Director of Public Prosecutions (1992) 28 NSWLR 282) is required. The "indicative sentences" are not sentences which themselves affect any right or entitlement of the offender. They form no part of the order made: Dacich v Director of Public Prosecutions (NSW) [2021] NSWCA 275. This Court has regularly proceeded on that basis (for example, see RO v R [2019] NSWCCA 183).
15. The indicative sentences, pursuant s 53A(2) of the Crimes (Sentencing Procedure) Act, are thus: 1. count 1: intimidation of Mr Jerome - 18 months; 2. count 2: assault Mr Jerome - 12 months; 3. count 4: assault occasioning actual bodily harm (SC Dekort) - 32 months; 4. count 6 - assault occasioning actual bodily harm (SC Kinghorne) - 28 months; 5. s 166 certificate: destroy/damage property - 4 months; 6. s 166 certificate: resist officer in the execution of duty (C Duckett) - 9 months; and 7. s 166 certificate: resist officer in the execution of duty (C Dimond) - 9 months.
16. I propose the following orders:
17. Grant leave to appeal on grounds 1, 2, 4, 5 and 6, and refuse leave to appeal on ground 3.
18. Appeal against conviction (grounds 1 and 2) dismissed.
19. Appeal against sentence allowed.
20. Quash the sentence imposed by the District Court on 27 October 2022, and in lieu thereof, sentence the appellant to an aggregate sentence of 5½ years imprisonment, with a non-parole period of 3½ years, commencing 17 October 2021 and expiring 16 April 2025, with the remainder of the term commencing 17 April 2025 and expiring 16 April 2027.
21. WRIGHT J: I agree with the orders proposed by Leeming JA for the reasons that his Honour has given.
22. WILSON J: I am grateful to Leeming JA for his judgment in this matter, which I have read in draft. I agree with his Honour with respect to the disposition of the appeal relating to conviction, grounds 1 and 2, for the reasons given. I also agree with the orders proposed in disposition of the sentence appeal, and with his Honour's reasons. I would add only an observation, to mark the commendable bravery and strong sense of duty of the four officers involved in the events of this night in knowingly placing themselves in harm's way to protect the community.

Amendments 05 March 2024 - inserted the words "said by the solicitor to have been" in [41] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2024