CRIMINAL LAW - Factors to consider when sentencing - good character of offender - no prior offences - offence at lower end of seriousness.

CRIMINAL LAW - Sentencing - imposition of probation supervision condition not required.

Crimes (Sentencing) Act 2005 (ACT), Pt 3.3, ss 17, 95

Magistrates Court Act 1930 (ACT), Pt 3.10, ss 208(1)(e)(ii), 216

Crimes (Sentence Administration) Act 2005 (ACT), Explanatory Statement, ss 112, 113, 113(3), 113(4), 113(5)

Court Procedures Rules 2006 (ACT), r 6

Mackenzie G and Stubbs N Principles of Sentencing (Federation Press: Sydney, 2010)

Harding C and Koffman L Sentencing and the Penal System (Sweet & Maxwell: London, 1988)

Tasmanian Law Reform Institute in its Final Report No 11, Sentencing (Hobart, 2008) at para 3.8.1

R v Bell [2005] ACTSC 123

R v Hamid [2006] NSWCCA 302

R v Devine (Tasmanian Supreme Court, Underwood J, 5 July 1993, unreported)

R v Brown (1992) 73 CCC (3d) 242

R v Thorn [2010] ACTCA 10

Morris v East (1988) 91 FLR 23

R v Bloomfield (1998) 44 NSWLR 734

Talukder v Dunbar [2009] ACTSC 42

R v Mandica (1980) 24 SASR 394

Vallett (1950) 34 Cr App R 251

Giles v Barnes [1967] SASR 174

R v Marquis [1974] 2 All ER 1216

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. The probation conditions imposed by Magistrate Lalor in the offender's good behaviour order dated 6 November 2009 are set aside.

2. The following new conditions are to be applied to offender's Good Behaviour Order dated 6 November 2009:

(a) offender attend at counselling through Relationships Australia and deliver a letter to the registrar of the ACT Supreme Court from that agency within one month from today confirming that he has commenced such counselling;

(b) offender deliver a letter from that agency within three months to the registrar of the ACT Supreme Court that details the number of times he has attended and whether his attendance has been regarded as satisfactory; and

(c) offender continues to seek assistance from New South Wales Hindu Society for as long as he considers it helpful.

1. On 11 June 2010, I made orders allowing this appeal and said I would delivery my reasons later. These are my reasons. Quarters

2. The appellant, Krishna Goundar, was charged on 29 June 2009 with assaulting Jai Mala Goundar on 27 June 2009. Jai Mala Goundar is the appellant's wife.

3. The offence occurred in the course of an argument about the conduct of Mrs Goundar's daughter, the step-daughter of the appellant. The argument started in the early hours of the morning of 27 June 2009. It caused Mrs Goundar to leave the house and, when she returned, to have no immediate contact with the appellant.

4. Some hours later, the appellant approached Mrs Goundar and the argument re-commenced. It became very heated and the appellant became really angry, including saying to Mrs Goundar, "I'm going to kill you" and swearing at her. He then came up to her and pushed her with his right open hand on her forehead, causing her to fall backward into the chair on which she had been sitting.

5. Mrs Goundar returned to her daughter's bedroom and the appellant followed, with the argument continuing. At one point the appellant came so close to his wife that he caused her to stumble backwards onto the bed.

6. It is not evident to me, on the material in the Appeal Book, exactly how the appellant came before the courts. However, it appears from the bench sheet that he was arrested in the very early hours of the morning of 28 June 2009 and brought before the court on the next day. That is, he was in custody from early Sunday morning until Monday morning when the court convened. The matter was clearly then adjourned.

7. There must also have been some negotiation with the prosecution, for the transcript of the sentencing proceedings, which took place on 6 November 2009 (a Friday), records the appellant's counsel saying to the learned Magistrate:

I'm grateful for the opportunity that your Honour provided on Wednesday. The facts are now settled and in a position to be tendered and I have a large amount of testimonial material.

8. The latter material consisted of 12 letters of character reference from a range of people, including a Minister in the ACT Government, a university Professor, senior members and office-bearers of community organisations, a businessman, a work colleague and a number of long-term friends.

9. The plea of guilty to the offence was then entered. It was noted that the appellant, then a 49 year old man, had no prior criminal record. A plea in mitigation was made by his counsel.

10. The appellant's counsel sought a non-conviction sentence order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The prosecution made no opposing submissions on that proposed disposition.

11. The learned Magistrate then imposed sentence as follows:

I find the offence proved. You're to sign an undertaking to comply with good behaviour undertakings for a period of 18 months. You're to give security in the sum of $500 without surety for compliance with the order and you're to be subject on probation to the supervision of the Chief Executive for that period of time, that is 18 months. And you're to attend any courses or counselling relating to anger management and inter-personal relationships.

12. Four days later, the appellant, through his solicitors, lodged a notice of appeal. The appeal challenged only the condition of the good behaviour order that required the appellant to be subject to probation for 18 months.

13. The single ground was that the imposition of the condition was unnecessary and excessive. No further evidence was sought to be adduced on the appeal.

14. The appeal is brought under Pt 3.10 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) which regulates appeals to the Supreme Court from decisions of the Magistrates Court. This appeal is brought under s 208(1)(e)(ii) of that Act for the non-conviction made under s 17 of the Sentencing Act appears in Pt 3.3 (Non-custodial orders) of that latter Act.

15. Under s 216 of the Magistrates Court Act, the institution of the appeal stays "the decision, conviction, order, sentence or penalty appealed from". It is not entirely clear whether this means that the good behaviour order itself is stayed or only the condition until disposal of the appeal. Thus, on disposal of the appeal, the period of 18 months, less four days from 11 June 2010, may be the period during which the appellant is subject to the good behaviour obligations. I did not hear any submissions on that and make no finding.

16. The principles on which the appeal is to be conducted appears, on the basis of the authorities, to be as follows:

1. The Court should only exercise its powers to intervene where, having regard to all the evidence before it, including any further evidence admitted on the appeal, the order appealed from is demonstrated to result from some legal, factual or discretionary error.
2. In finding the facts, the appellate court is in as good a position as the lower court to decide the proper inferences to be drawn from the undisputed facts, where no oral evidence is given in the court below, or the learned Magistrate's findings based on oral evidence are not challenged. The appellate court must, however, give respect and weight to the conclusion of the learned Magistrate, although, once having reached its own conclusion, must give effect to it.
3. The sentence imposed must not be overturned simply because the appellate court would have imposed a different sentence at first instance but error must be found in the decision of the lower court.
4. A legal, factual or discretionary error may be found where the learned Magistrate has, inter alia, taken into account irrelevant considerations or failed to take account of relevant considerations, made an error of law, acted on a wrong principle or mistaken the facts.
5. The error may not be a specific error that can be identified, but that the sentence is manifestly excessive, unreasonable or manifestly inadequate. In such a case, error may be inferred, given that the sentence is excessive, unreasonable, inadequate, unjust or wrong. From that inference, of course, there must be able to be drawn the conclusion that a different sentence is appropriate.
6. Despite the finding of error, it is still necessary to show that the sentence is manifestly excessive, unreasonable or manifestly inadequate and, in the event that this is not shown, the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the same sentence.

17. The respondent raised a preliminary point that the appeal should be dismissed because it was "not the appropriate vehicle for what the appellant seeks."

18. The respondent, who was represented by Mr T Jackson, submitted that the appropriate "vehicle" was an application under s 112 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act). That section is in the following terms:

(1) A court may, by order -

• (a) amend an offender's good behaviour order; or
• (b) discharge an offender's good behaviour order.

Example for par (a)

The court may impose or amend an additional condition of the order, or amend the term of the order.

Example for par (b)

The court is satisfied that the conduct of the offender makes it unnecessary that the offender continue to be bound by the order.

Note 1 Amend includes omit or substitute (see Legislation Act, dict, pt 1).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) The court may act under this part -

• (a) on its own initiative; or
• (b) on application by an interested person for the good behaviour order.

(3) The amendment of the good behaviour order takes effect as stated in the court order.

(4) This section is subject to section 113.

1"> 19. Section 113 provides some limits on the power to amend a good behaviour order under s 112 (i.e. limits on certain extensions of the order or a community service condition and on making conditions inconsistent with core conditions) and ss (3), (4) and (5) are relevant. They provide:

(3) If the Supreme Court made, or amended, an offender's good behaviour order, the Magistrates Court must not amend the order in a way that would be inconsistent with the order as made, or amended, by the Supreme Court.

(4) However, subsection (3) does not apply to a requirement, incidental to a proceeding before the Magistrates Court, that is not inconsistent with the substance of the good behaviour as made, or amended, by the Supreme Court.

(5) If the Supreme Court made or amended an offender's good behaviour order, the Magistrates Court must not discharge the order.

20. While the respondent submitted that s 113 of the Sentence Administration Act is not enlivened, for it was submitted that the appellant should apply under s 112 to the Magistrates Court for amendment of the good behaviour order, it is not clear to me that it is completely irrelevant.

21. It seems to me that s 113(3), (4) and (5) mean that when s 112 refers to "a court", it is not necessarily limited to the court which made the good behaviour order. Indeed, ss (3) appears to say, in terms, that the Magistrates Court can amend a good behaviour order made by the Supreme Court (as long as the amendment is not inconsistent with the Supreme Court's good behaviour order). An example might be that if counselling is required by a condition of a good behaviour order made by the Supreme Court and the condition specifies a particular agency to provide it, then the Magistrates Court could amend the order to provide for another, equally reputable or appropriate agency if, for example, the originally nominated agency could no longer provide the required counselling, such as because of prohibitive cost, unavailability of placements, excessively long waiting lists, or even the agency's liquidation.

22. My view is re-inforced by the Explanatory Statement to the Bill which became the Sentencing Administration Act. What is s 113 in the Sentence Administration Act was s 112 in the Bill. The Explanatory Statement said of what is now s 113(3), (4) and (5):

Likewise, in (3) the Magistrates Court cannot amend an order in a way that is inconsistent with a condition set by the Supreme Court.

Clause 112(4) is an exception to 112(3) where the Magistrates Court needs to engage an amendment of a good behaviour order to carry out its responsibilities in relation to a proceeding before it. For example, if a Magistrates Court is hearing a protection order application for a full order against an offender subject to a good behaviour order made by the Supreme Court, the Magistrates Court may alter the good behaviour order to give effect to the protection order.

Clause 112(5) ensures that the Magistrates Court may not discharge an order made or amended by the Supreme Court.

23. The upshot of this is that, if the appellant could relevantly apply under s 112 of the Sentencing Administration Act to the Magistrates Court, which imposed the good behaviour order to secure the remedy he seeks, then he can apply to the Supreme Court. Indeed, arguably, I could simply permit under r 6 of the Court Procedures Rules 2006 (ACT) that the notice of appeal be taken to be an originating application for an order under s 112 of the Sentence Administration Act.

24. There is, therefore, no apparent bar by virtue of s 112 of the Sentence Administration Act in the proceedings continuing in this court.

25. The problem that the drafters have provided, but not answered, is why a person subject to a good behaviour order should be permitted to apply to a different court for such amendment or discharge and, what criteria there are for the person to decide to which court to apply or, indeed, for the court to decide whether to accept the application and hear it.

26. It does seem to me, however, that the intention of the provisions is not to permit an appeal by another route. Both the example for s 112(1)(b) (see [18] above) and the Explanatory Statement (see [22] above) assist in determining to what this provision is directed. It seems to me that it is not intended to allow a person, in respect of whom a good behaviour order is made, to seek to challenge it by applying for amendment or discharge simply because he or she does not like it or thinks it is manifestly excessive or inadequate or wrong.

27. It seems to me that it is intended to apply when there is a change in circumstances which makes the order no longer appropriate, or the effluxion of time makes it unnecessary, or the basis on which it was made is subsequently found to be wrong, such as where an agency does not in fact provide a service that a condition of the order requires the person to access. It also seems to me that a court other than the court which imposed the good behaviour order should not act under this provision unless it is already dealing with the offender in a way that calls for some change in the order. Ordinarily, such action should be by the court which originally imposed the order.

28. Thus, while it appears theoretically that the appellant could have used this provision to seek an amendment, there are no relevant matters of the sort referred to above (at [27]) which would justify the court in assuming jurisdiction to amend or discharge the order. The application is truly an appeal.

29. The appellant submitted that the condition of the good behaviour order was unnecessary and excessive for the nature of the offence. It was submitted that nothing in the reasons or the submissions on sentence explained why a period of 18 months supervision was required for the offence or the appellant.

30. The appellant submitted that it was significant that neither the counsel for the prosecution or the appellant raised the need for, or appropriateness of, such supervision, nor did the learned Magistrate raise it with either counsel so that counsel was not heard on the issue.

31. The appellant further submitted that the appellant's age and good character (including his absence of criminal record) and the fact that the offence was at the lower end of seriousness meant that probation supervision was unnecessary.

32. The respondent submitted that the sentence was not manifestly excessive so far as the requirement for probation supervision was concerned. It was submitted that this was an offence of family violence which was an aggravating feature of the offence. Reference was made to what fell from Higgins CJ in R v Bell [2005] ACTSC 123, where his Honour said (at [30]-[31]):

1. It is true to say that most assaults on women are at the hands of their partners or ex-partners. It is a pernicious and evil phenomenon not only because of the immediate trauma to the victim. Its evil influence spreads to children as well. It is no coincidence that, in my experience, young offenders, more often than not, present with a family history of domestic violence. It used to be regarded as a family matter, to be kept private. Victims would be made to feel humiliated, and ashamed to complain; in truth it is entirely the criminal conduct of the perpetrator which is at fault. It is entirely in the public interest that such conduct be exposed and deterred.
2. I appreciate that personality disorders may often underlie the criminal behaviour of men who beat women. Alcohol or other substance abuse may sometimes be a triggering factor. Nevertheless, they must take responsibility for their actions and be seen to have done so. The offence is often hidden, so general deterrence is a factor that is quite prominent. So also is specific deterrence. No offender engaging in this kind of behaviour, nor their victims, should feel that it is to be treated lightly. Rather, it must be made the subject of condign punishment. That is not to say, of course, that any mitigatory factors or prospects for rehabilitation will be disregarded.

33. Mr T Jackson, who appeared for the respondent, also referred to what Johnson J (with whom Hunt AJA and Latham J agreed) said in R v Hamid [2006] NSWCCA 302 (at [65]-[74]).

34. It may not be doubted that family violence is a serious matter and that the courts are right to impose deterrent sentences for such offences. Thus, Johnson J quoted with approval what had been said by Underwood J (as his Honour then was) in R v Devine (Tasmanian Supreme Court, Underwood J, 5 July 1993, unreported):

Domestic violence is a profound problem and it is the duty of the courts to denounce offences such as these and attempt to deter its recurrence by you and other men. The relationship of husband and wife, albeit estranged, is an aggravating factor for violence of this kind constitutes a breach of trust. It is also an abuse of power and control on one who, in the circumstances, was in a position of vulnerability.

35. His Honour also cited, with approval, the following passage from R v Brown (1992) 73 CCC (3d) 242 (at 249):

When a man assaults his wife or other female partner, his violence toward her can be accurately characterised as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape.

36. Those are clearly appropriate approaches to the sentencing of offenders who commit offences of family violence. It is to be noted, of course, that the offences which are the subject of the decisions referred to earlier were objectively much more serious than the appellant's offence. Even though this was a significantly less seriousness offence than the subject of any of the above quoted decisions, the offence deserves to be treated seriously. As Johnson J said in R v Hamid (at [77]):

Domestic violence ... typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and ... contributes to the subordination of women.

37. As to the ground of appeal, Mr Jackson also referred to what I said in Hawkins v Hawkins (2009) 3 ACTLR 210 (at [47]):

Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can - and should - draw the relevant conclusion.

38. It is also worth repeating what I said later (at [54]):

... it is incumbent upon the appellant to address the relevant factors, point to the sentencing pattern, with reference where appropriate to particular cases, or to more general statistical material (through this needs to be dealt with sensibly as set out by Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734 at 739), and elaborate on the particular facts of the offence, or offences, and the subjective circumstances of the offender from which the court may draw the relevant conclusion.

39. See also R v Thorn [2010] ACTCA 10 (at [33]).

40. This, of course, can pose problems when dealing with offences in this jurisdiction where the available statistical material is sparse or non-existent. The court can, however, judge "the limits of a sound discretionary judgment" (per Miles CJ in Morris v East (1988) 91 FLR 23 (at 31)) in certain types of cases. It is not assisted by opinion or a small sample (see R v Bloomfield (1998) 44 NSWLR 734 (at 739) "viii) The larger the sample the more likely the statistics are to be useful"). Similarly, details of sentences without the reasons and circumstances are also less likely to be useful. Where an offence can be committed in a wide variety of circumstances, it also seems to me that such statistics have a limited value, though they are by no means irrelevant.

41. The respondent also noted that in a busy Magistrates Court, detailed reasons are not expected. I did note in Talukder v Dunbar [2009] ACTSC 42 (at [60]) that, nevertheless, the offender is entitled to know the reasons for the sentence imposed.

42. In conformity with this, Mr Jackson did point to an exchange between counsel for the offender and the learned Magistrate as follows:

HIS HONOUR: It's sad to see such a family fractured. It'd be a disaster. I strongly appeal for counselling such that the differences are resolved amicably.

MR SHARMAN: Yes. Your Honour will see from the main part that most of the references refer specifically to these proceedings but they do express a desire that once what was a happy union can be returned through the parties having better communication and the perhaps access to professionals and others within the Fijian community.

It certainly raised the issue of counselling and which appears to have been adopted by the appellant's counsel.

43. The respondent further submitted that there was an opportunity for counsel to make relevant submissions as the learned Magistrate clearly indicated that he was proposing to proceed under s 17 of the Sentencing Act.

44. It is clear to me that this was an offence at the lower end of the scale of seriousness for such offences, notwithstanding the circumstances that it was a family violence offence, and that it was committed by a person of otherwise unblemished record. Indeed, as noted by the appellant's counsel, Mr J Sabharwal, it was not just the fact that he had not committed any prior offences, but he had a substantial number of very positive references which attested to his good character. They referred to his devotion to his family and his children, his deep religious conviction, his community work, his lack of prior violence and that the incident was entirely out of character. He clearly was a good family man and a good citizen.

45. This, as Mr Sabharwal correctly submitted, is evidence of positive good character, which, a Jacobs J pointed out in R v Mandica (1980) 24 SASR 394 (at 406) is more than

merely in an absence of previous convictions, compared with affirmative and credible evidence of good reputation and character.

46. See also Vallett (1950) 34 Cr App R 251 (at 254).

47. The importance of this factor was well described by Bray CJ in Giles v Barnes [1967] SASR 174 (at 180) where his Honour said:

If the Court is told that nothing is known against a man it assumes he possesses a good character in the negative sense, namely that there are no black marks against him so far as is known. It is, however, generally assumed, and in my view rightly, that where a witness who knows the defendant ... gives positive evidence as to his character and reputation, that adds considerably to the weight which the Court attaches to the defendant's favourable record.

48. Thus, as both counsel and the learned Magistrate all agreed, it was appropriate to proceed under s 17 of the Sentencing Act. Mr Jackson, however, submitted that the fact that the offence was a family violence offence meant that weight had to be given to general and specific deterrence to take into account the additional aggravating feature of the offence.

49. While that may be accepted, supervision on probation is not ordinarily seen as part of the deterrent component of sentencing. In general terms, it is regarded as rehabilitation, as opposed to, say, community service work. See Mackenzie G and Stubbs N Principles of Sentencing (Federation Press: Sydney, 2010) p 163. While it is not only undesirable, but also realistically impossible to categorise sentencing options by a supposed single purpose they might serve, it is important to bear in mind the value and intended effect of sentencing options. Thus, unless actual supervision is required for a rehabilitative purpose, then it is not appropriate to make a probation condition: R v Marquis [1974] 2 All ER 1216 (at 1218). Indeed, as was observed in Harding C and Koffman L Sentencing and the Penal System (Sweet & Maxwell: London, 1988) at p 231, the consent of an offender was originally required before a probation order was imposed "to emphasise that such an order is non-punitive in nature; indeed, a probation order is imposed 'instead of sentencing' the offender". This cannot entirely be accepted now, but this genesis is a salutary reminder that it is not appropriate to make a probation order longer in order to impose some purported punishment presumably by making the offender interfere with his or her life by having to attend on and being subject to the direction of a probation officer for longer than is necessary to provide the supervision required for rehabilitative purposes.

50. The purposes of probation supervision were well described by the Tasmanian Law Reform Institute in its Final Report No 11, Sentencing (Hobart, 2008) at para 3.8.1 as being:

[t]o minimise the risk of offending and its effect on the community by encouraging offenders to achieve responsible behaviour through the administration and enforcement of orders and conditions imposed by the courts...The Focus is on offending behaviour, and referral to programs aimed at improving social attitudes and personal circumstances ...

51. The only basis on which the supervision in this case can be justified is that it be imposed in order to ensure that the appellant undertakes relevant counselling. Indeed, were the requirement for counselling to have been made as a rehabilitation program condition, then a probation condition would have also had to be made as required by s 95 of the Crimes (Sentencing) Act 2005 (ACT).

52. Mr Sabharwal, for the appellant, submitted that supervision was not raised with counsel at the hearing above (at [6]-[11]) so as to give counsel an opportunity to be heard on it. So much may be accepted that it was not raised in terms. The issue of counselling, however, was raised. See the extract from the proceedings reproduced (at [42]) above.

53. Thus, it could be argued that supervision was a necessary part of the structure required to ensure that the appellant attended suitable counselling, particularly as no specific counselling had been identified. Often that would be the case. For example, a person who was disorganised, or unreliable, or an addict may require supervision to monitor the counselling. Again, supervision may enable suitable counselling to be identified without the need of an adjournment. Similarly, where the offence is serious and the rehabilitation program is an important element in the sentence to prevent recidivism, supervision may be required. These do not, of course, exhaust the circumstances where it is appropriate or necessary.

54. In this case, however, no particular justification was offered. It must have been assumed that the probation officer would identify and direct suitable counselling. There was no real likelihood that the appellant would otherwise specially benefit from, or need, the invaluable guidance or support that can often be gained from probation officers by many who appear before the criminal courts. Nor was there an issue with administration of urinalysis, or breath analysis, or compliance with medication regimes that might warrant supervision.

55. In this case, the appellant held a relatively senior position in his employment. He had substantial support from his ethnic community and his religious community. It may have been better if specific counselling options had already been in place at the time of sentencing as they were by the time of the appeal.

56. Further, there was no information before the court, on which it could rely, about the period of time for which appropriate counselling should be provided. ACT Corrective Services, to my knowledge gained through other sentencing proceedings, has programs which may have been relevant. These are the Cognitive Self Change Program (around 24 weeks to complete, but for "resistant participants" up to 12 months) and the Family Violence Self Change Program (again around 24 weeks to complete, but for "resistant participants" up to 12 months).

57. Thus, even were the learned Magistrate to be of the view that there may be some resistance to participation in such a program by the appellant, supervision would, at the outside, be appropriate for 12 months. Probably less was required, if supervision was deemed necessary at all.

58. Having carefully considered the matter, I cannot see why supervision was required in this case when there were other, less interventionist ways of dealing with the appropriate disposition and there was no other need for supervision.

59. In my view, a period of supervision for 18 months was manifestly excessive in all the circumstances. Accordingly, I set aside that condition and replaced it with a requirement to attend certain counselling and to report that to the registrar of the Supreme Court so that a record is kept and a failure to do so can be reported to the court. I am confident that, in this case, that was sufficient.

I certify that the preceding fifty nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the respondent: ACT Director of Public Prosecutions