David Dowling v Leia Kahui Hamlin
[2006] ACTSC 117
•1 December 2006
DAVID DOWLING v LEIA KAHUI HAMLIN
[2006] ACTSC 117 (1 December 2006)
APPEAL – sentence – appellant convicted of a federal offence – sentenced to community service pursuant to s 20AB Crimes Act 1914 and s 408 Crimes Act 1900 – recognizance imposed pursuant to s 20(1)(a) Crimes Act 1914 – whether combination of sentences permitted under federal law.
Criminal Code Act 1995 (Cth), s135.2
Crimes Act 1914 (Cth), ss 3B, 20, 20AB, 20AC, 21B
Crimes Act 1900 (ACT), ss 403, 408
Crimes (Sentencing) Act 2005 (ACT), ss 9, 13
Crimes Act 1958 (Vic), ss 508, 520
Probation of Offenders Act 1973 (Tas)
Crimes Amendment Act 1982 (Cth)
Offenders Probation Act 1913 (SA), s 20AC
Penalties and Sentences Act 1992 (Qld)
R v Wright and Pope [1980] VR 41
Bantick v Blunden (1981) 36 ALR 541
Winchester v R (1992) 58 A Crim R 345
Adams v Carr (1987) 26 A Crim R 372
R v Shambayati (1999) 105 A Crim R 373
Shaw v Costerfield Gold and Antimony Mining Co (1870) 1 VR (M) 7
A v Law Society of Tasmania (2001) 10 Tas R 152
Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192
Duralla Pty Ltd v Plant (1984) 2 FCR 342
Edwards v Noble (1971) 125 CLR 296
IN THE MATTER OF AN ORDER NISI TO REVIEW A DECISION OF THE MAGISTRATES COURT
No. SC 195 of 2006
Judge: Higgins CJ
Supreme Court of the ACT
Date: 1 December 2006
IN THE SUPREME COURT OF THE )
) No. SC 195 of 2006
AUSTRALIAN CAPITAL TERRITORY )
IN THE MATTER OF AN ORDER NISI TO REVIEW A DECISION OF THE MAGISTRATES COURT
BETWEEN:DAVID DOWLING
Appellant
AND:LEIA KAHUI HAMLIN
Respondent
ORDER
Judge: Higgins CJ
Date: 1 December 2006
Place: Canberra
THE COURT ORDERS THAT:
Appeal be upheld.
This is an appeal by way of order of review of a decision of Magistrate Madden, made on 16 February 2006, convicting the respondent of an offence of dishonestly obtaining a financial advantage contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth) (the Code). The amount so obtained was $6,685.37.
His Honour sentenced the respondent to undertake 160 hours of community service, purportedly pursuant to s 20AB Crimes Act 1914 (Cth) and s 408 Crimes Act 1900 (ACT). In addition, his Honour ordered that the respondent be released on entering a recognizance pursuant to s 20(1)(a) Crimes Act 1914, in the sum of $1,000 to be of good behaviour for 18 months.
Pursuant to s 9 of the Crimes (Sentencing) Act 2005 (ACT) (ACT Sentencing Act), a court in this Territory may, in respect of any offence found proved, impose any combination of the various sentencing options allowed under that Act, if not mutually inconsistent with each other. Community service, by virtue of s 13(3) of the ACT Sentencing Act, may be included as a condition of a good behaviour order. That Act was not yet in force as at 16 February 2006. It became so on 2 June 2006.
The Commonwealth Director of Public Prosecutions, representing the informant, complains (no doubt reluctantly) that, although permitted under Territory law, such a combination of sentencing options is precluded by the terms of the Crimes Act 1914 (Cth). There is, it should be noted, no challenge to the making of a reparation order in the amount of $6,685.37. That is an additional option expressly permitted by s 21B Crimes Act 1914.
The relevant provision permitting release on recognizance under the Crimes Act 1914 is s 20(1)(a) which provides:
(1)Where a person is convicted of a federal offence or federal offences, the court before which he is convicted may, if it thinks fit:
(a)by order, release the person, without passing sentence on him, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:
Mr White, for the appellant, emphasised the words I have highlighted above. It is not necessary further to set out the conditions permitted under s 20(1) (supra) otherwise than to note that they do not expressly include, as does s 13(3) of the ACT Sentencing Act, the power to impose an obligation to perform community service though it does include the following:
(iv)that he will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed,
As at 16 February 2006, s 403 Crimes Act 1900 permitted the release of an offender on recognizance. It was in the following terms:
403 Conditional release of offenders
(1)Subject to this section, if a person is convicted of an offence against a territory law, the court by which he or she is convicted may, if it thinks fit, by order—
(a) release the person without passing sentence upon him or her on his or her giving security, with or without sureties, by recognisance or otherwise, to the satisfaction of the court that—
(i)he or she will be of good behaviour for the period the court specifies in the order; and
(ii)he or she will, during the period so specified, comply with the conditions (if any) that the court thinks fit to specify in the order, which conditions may include—
(A) the condition that the offender will, during the period so specified, be subject to the supervision on probation under a person, for the time being appointed in accordance with the order; and
(B) the condition that the offender will obey all reasonable directions of a person so appointed; and
(C) the condition that the offender will comply with an order made under section 350; and
(iii)he or she will pay to the Territory the penalty (if any) that the court specifies in the order on or before a date specified in the order or by specified instalments as provided in the order; or
(b) sentence the person to a term of imprisonment but direct that the person be released, on him or her giving a like security to that referred to in paragraph (a), either forthwith or after he or she has served a specified part of the sentence imposed on him or her.
(2)A court shall not release a person under subsection (1) on condition that the person perform unpaid community work.
(3)If a person is convicted of an offence in respect of which a fine might be imposed on the person instead of imprisonment, subsection (1) does not authorise the court by which he or she is convicted, when directing that the person be released as provided in subsection (1) (a), to require the person to give security for the payment of a penalty exceeding the maximum amount of the fine that might be so imposed.
(4)Subsection (1) does not authorise the Magistrates Court, when directing that a person be released as provided in subsection (1) (a), to require the person to give security for the payment of a penalty if the offence of which the person has been convicted is an offence in respect of which the court is empowered to sentence the person to imprisonment but the maximum term of imprisonment to which the court may sentence the person is less than 6 months.
(5)If a court makes an order for the release of a person on his or her giving security for the payment of a penalty, the court shall specify in the order the person to whom and the place where the penalty, or each instalment of the penalty, as the case may be, is to be paid.
(6)The maximum amount of the penalty that a court may specify in respect of an offence in an order made under subsection (1) in relation to a person is—
(a) if the offence is punishable by a fine—the amount of the maximum fine that the court is empowered to impose on the person for the offence; or
(b) if the offence is not punishable by a fine—
(i)for the Supreme Court—$10 000; or
(ii)for the Magistrates Court—$2 000.
Section 408 (Crimes Act 1900), as at 16 February 2006, provided:
408 Directions to perform work
(1)If a person who has attained the age of 18 years is convicted of an offence against a territory law punishable by imprisonment, the court may, if it thinks fit, instead of sentencing the person to imprisonment, by order—
(a) direct him or her to perform unpaid work for the number of hours, being a number that is a multiple of 8, not less than 24 and not more than 208, that the court specifies; and
(b) require him or her to report to a community corrections officer within the time (if any) the court specifies; and
(c) direct that he or she be released from custody forthwith.
(2)Nothing in subsection (1) affects the power of a court—
(a) to order an offender to make restitution of property; or
(b) to direct an offender to pay compensation to an aggrieved person; or
(c) to make an order for costs against an offender; or
(d) disqualify the person from holding or obtaining a driver licence under the Road Transport (Driver Licensing) Act 1999 for the period the court considers appropriate; or
(e) to order the forfeiture of any property; or
(f) to impose a fine on an offender; or
(g) to make an order in respect of an offender under section 403(1)(a).
Note The effect of disqualification (mentioned in par (d)) is set out in the Road Transport (General) Act 1999, s 66.
(3)If the court makes an order mentioned in subsection (2) (d), the court must give particulars of the order to the road transport authority.
(4)If a community service order has been made, the officer of the court shall—
(a) cause the order to be reduced to writing; and
(b) cause a copy of the order to be given to the offender and another copy to be given to a community corrections officer.
Note If a form is approved under the Court Procedures Act 2004 for this provision, the form must be used.
(5)If a court—
(a) makes more than 1 community service order in respect of the same offender; or
(b) makes a community service order while another community service order is in force in respect of the relevant offender;
the court may direct that the hours specified in the last-made order be worked concurrently with or in addition to any hours to be worked under any other community service order in force in respect of the offender.
(6)The number of hours for which an offender in respect of whom 2 or more community service orders are in force may, after the date when the later or last of those orders was made, be required to perform unpaid work under those orders shall not exceed, in the aggregate, 208.
It should be noted, as Mr White emphasised, that s 408 (supra) permits a community service order to be made only “instead of sentencing the person to imprisonment”. It is therefore, a ‘sentence’. Section 20(1)(a) Crimes Act 1914 may be used only if no sentence is pronounced. There is no equivalent under s 20(1)(a) Crimes Act 1914 of s 408(2)(g) Crimes Act 1900.
The Crimes Act 1914, s 20AB, does recognise a community service order as a sentencing option. The learned Magistrate purported to make such an order in reliance upon that provision. It provides:
20AB Additional sentencing alternatives
(1) Where under the law of a participating State or a participating Territory a court is empowered in particular cases to pass a sentence or make an order known as a community service order, a work order, a sentence of periodic detention, an attendance center order, a sentence of weekend detention or an attendance order, or to pass or make a similar sentence or order or a sentence or order that is prescribed for the purposes of this section, in respect of a State or Territory offender, such a sentence or order may in corresponding cases be passed or made by that court or any federal court in respect of a person convicted before that first-mentioned court, or before that federal court in that State or Territory, of a federal offence.
(1A) Where the law of a participating State or a participating Territory requires that before passing a sentence, or making an order, of the kind referred to in subsection (1) a court must first pass another sentence or make another order (whether or not that other sentence or other order is suspended upon the making of the first-mentioned sentence or order), then, a court is not required, before passing or making that first-mentioned sentence or order in respect of a person convicted by that court for a federal offence, to pass that other sentence or make that other order.
…
(3) Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territory of a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1).
(4) Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person convicted of an offence against the law of the Commonwealth, the court may also do all or any of the following:
(a)impose any fine or other pecuniary penalty that the court is empowered to impose on the person for the offence;
(b)make any order requiring the person to make reparation or restitution, or pay compensation, in respect of the offence that the court is empowered to make;
(c)make any other order that the court is empowered to make.
(5) Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person, the court shall, as soon as practicable, cause the sentence or order to be reduced to writing and a copy of the sentence or order to be given to, or served on, the person.
(6) Subsection (1) does not permit a court (including a federal court) to pass a sentence, or make an order, that involves detention or imprisonment, in respect of the conviction of a person before the court of a minimum non-parole offence mentioned in section 19AG.
There was, as at 16 February 2006, no requirement before imposing a community service order under s 408 Crimes Act 1900, to make any other order or pass any other sentence, save that of conviction so as to render the offender liable to a sentence of imprisonment. Thus, under s 20AB(1) Crimes Act 1914 it was open to the learned Magistrate, upon convicting the respondent, to have, following the recording of a conviction, made a community service order under s 408(1) Crimes Act 1900.
Mr White contends that the making of a recognizance release order under s 20(1)(a) Crimes Act 1914 precludes the option referred to in s 20AB(1) Crimes Act 1914 so far as sentences passed under that Act in this Territory are concerned. His contention was that whilst the learned Magistrate could have used s 20AB to impose the community service order that would exclude the operation of s 20(1)(a). Mr White relied upon R v Wright and Pope [1980] VR 41 and Bantick v Blunden (1981) 36 ALR 541 as persuasive authority to that effect.
In the former case, the Full Court of the Supreme Court of Victoria (Young CJ, Menhennitt and Jenkinson JJ) considered the terms of s 520 Crimes Act 1958 (Vic). The appellants in that case, upon single charges against each of assault, had been fined and placed upon a probation order.
The provision empowering the making of a probation order under State law was couched in terms that the sentencing court “may instead of sentencing him make a probation order” (s 508(1) Crimes Act 1958).
Their Honours concluded (at 44) that:
… no punitive order, which could be – or which could form part of – what is comprehended by the expression “sentence” in s 517(5) and (6), or by the expression “sentencing him” in s 508(1), may be made at the time when a probation order is made. The legislative intention is in our opinion plain that the making of a probation order is provided as an alternative, upon conviction, to the making of any such orders as those expressions comprehend, and that power to make orders of the latter kind, in respect of an offence upon conviction of which a probation order has been made, is abrogated unless and until one or other of the conditions specified in ss 516 and 517 has been fulfilled.
In our opinion the imposition of a fine is comprehended by the word “sentence” …
Section 520 also provided that, subject to specifically provided exceptions, a probation order was deemed not to be a conviction “for any purpose”. A fine required a conviction first to be entered before the power to impose it was enlivened. The making of a probation order precluded the option of conviction which would then have enlivened the power to impose a fine. No doubt for that reason s 403(1)(a)(iii) Crimes Act 1900 expressly permits a monetary penalty as part of a recognizance release order.
Bantick v Blunden (supra) seems more in point. The appellant was convicted before a magistrate of wilfully damaging the property of a Commonwealth agency (Australian National Railways Commission). The sentencing magistrate, purporting to act under s 20(1) Crimes Act 1914, made an order for the release of the appellant on recognizance upon conditions as to good behaviour, probation and performance of 10 work orders. The latter condition referred to a sentencing option broadly equivalent to a community service order. It was an option available under the Probation of Offenders Act 1973 (Tas) in respect of State offenders. The appellant contended that there was no power under s 20 Crimes Act 1914 to impose the latter condition as part of a recognizance under s 20(1) Crimes Act 1914.
Green CJ agreed. His Honour noted, at 543:
Section 20(1) of the Crimes Act 1914 gives the court the power to impose such conditions as it thinks fit. Although the power is not expressly made subject to any limitations, it is obvious that its scope is not unlimited: for example conditions imposed pursuant to it must bear some relationship to the offence or to the circumstances of the offender and may not be such as to oblige a defendant to do something which is unlawful or impossible: see Isaacs v McKinnon (1949) 80 CLR 502 at 510 and R v Keur (1973) 2 ALR 237 at 239. A further limitation is indicated by the words of the sub-section itself. Two conditions of the exercise of the power conferred by the first limb of s 20(1) are that the court thinks that it is appropriate to “release [the defendant] … without passing any sentence upon him” and that in fact it does so. The imposition of a condition which operated so that the defendant was not in fact released, or which amounted to the passing of a sentence upon him, would be bad because it would be inconsistent with the object of the subsection and, possibly, also because it would be beyond power, as it would result in the conditions for the operation of the subsection not being satisfied.
His Honour considered that the imposition of a work order pursuant to the Probation of Offenders Act 1973 was:
clearly penal in character and to the extent that for one day each week it restricts that person’s freedom of movement by requiring him to attend and remain at a particular place, it could also be properly characterised as a custodial order. In my view, the imposition of the condition was in substance the imposition of a sentence and therefore the learned magistrate’s order was not a proper exercise of the discretion conferred by s 20(1).
After this decision was handed down s 20AB was inserted into the Crimes Act 1914 by Act No 67, 1982 (with subsequent amendments No 193, 1985; No 4, 1990; No 104, 2004). Those are the provisions set out in [9] (supra).
The Australian Capital Territory has been a participating Territory since 2 August 1990 (see Commonwealth Gazette No S221, 3 August, p 3).
In the matter of Winchester v R (1992) 58 A Crim R 345, (NSW CCA; Hunt CJ at CL, Smart and Grove JJ) the sentencing judge had expressed the view that neither community service nor periodic detention were available in respect of federal offenders sentenced in New South Wales. Hence he did not consider activating those sentencing options. Their Honours pointed out that this statement was incorrect having regard to the enactment of s 20AB Crimes Act 1914 and the status of New South Wales (since 12 November 1990) as a “participating State”. The sentence imposed was set aside.
In Adams v Carr (1987) 26 A Crim R 372 (SASCFC) at first instance a penalty was imposed on a federal offender of release upon recognizance. It was also ordered by the sentencing magistrate that the offender undertake 110 hours of community service. Von Doussa J (King CJ and Bollen J concurring) noted that the Crimes Amendment Act 1982 (Cth) had widened sentencing options in respect of federal offenders sentenced (inter alia) in South Australia. At 373 his Honour said:
… ss 20AB and 20AC were enacted with the evident intent that community service orders, along with other innovative measures which by then had been introduced in several States and Territories, would be available alternatives where an offence against the law of the Commonwealth was found proved if such orders, or similar orders, were available in corresponding cases in the relevant State or Territory court for an offence against the law of that State or Territory.
South Australia was gazetted as a participating State pursuant to s 3B Crimes Act 1914 on 22 May 1986.
The Director of Public Prosecutions (Cth), however, contended that the provisions of the Offenders Probation Act 1913 (SA) were incompatible with ss 20AB and 20AC of the Crimes Act 1914. The Offenders Probation Act authorised the release of the offender upon a recognizance, a permitted condition of which might be the performance of a specified period of community service, much as is now provided under the ACT Sentencing Act s 13.
Von Doussa J considered that a disposition of a matter by way of recognizance, a condition of which was the performance of community service was an “order” within the scope of that expression as used in s 20AB. It was the intent of s 20AB that the relevant State law be available to be applied. If, however, parts of the State scheme were inconsistent with the Commonwealth law then no part of that State scheme could apply. It would not be a “corresponding case”. The sentencing magistrate had directly ordered, not as a condition of a recognizance, that the offender perform community service and that the offender be of good behaviour for a specified period. The State Act provided that those obligations could be imposed only as terms of a recognizance into which the offender entered. If the conditions were imposed as separate orders an inconsistency arose between the enforcement provisions of the Offenders Probation Act and s 20AC. The sentence was therefore not compliant with the Crimes Act 1914.
However, that did not end the matter. Von Doussa J considered that the performance of community service could be ordered pursuant to s 20(1)(a)(iv) of the Crimes Act 1914 subject to the recognizance defining that condition so as to utilise the terms and facilities in aid of such a condition available pursuant to the Offenders Probation Act, albeit that it was not an order under that Act. In his Honour’s view the 1982 amendments rendered Bantick v Blunden (supra) distinguishable but, in any event, disagreed with the observation of Green CJ that a community service order was a custodial sentence. Hence the original sentence was set aside but reimposed by way of a s 20(1) recognizance amended to reflect his Honour’s view.
I also note R v Shambayati (1999) 105 A Crim R 373 (QCA). A similar sentence to that considered in Adams v Carr (supra) was imposed by a judge of the District Court of Queensland. The appellant disputed the community service order. It had been made, however, as a term of a recognizance release order not as a separate order. The Court (Pincus, Davies and Thomas JJA) noted that s 20AB Crimes Act 1914 would authorise such a sentence but only if the appellant consented. It could not be ordered pursuant to the Penalties and Sentences Act 1992 (Qld), being the relevant State law, if the offender did not consent. Hence community service could not, absent consent to it as a condition, be ordered pursuant to s 20AB Crimes Act 1914. The offender had not consented to the order. Their Honours recognised that their decision appeared inconsistent with Adams v Carr (supra) but considered that the inconsistency only related to whether, if the State provision was incompatible with s 20AB and 20AC Crimes Act 1914, the provisions of s 20(1) Crimes Act 1914 could be utilised to similar effect.
Mr White submits that the provisions of s 403(1)(a) Crimes Act 1900 and s 408(2)(g) Crimes Act 1900 are not compatible with s 20(1) Crimes Act 1914. There was no reliance on s 20AB to pick up s 408(2)(g) nor could it because it is a separate sentencing option to that of release on recognizance. Hence, he submits, the sentence was defective.
The effect of those provisions, for the Territory, is that a release on recognizance under s 403(1)(a) Crimes Act 1900 itself was clearly compatible with s 20(1) Crimes Act 1914. Indeed, the two provisions are substantially the same. Section 408 Crimes Act 1900 empowered the imposition of a community service order but it is “instead of sentencing the person to imprisonment” (s 408(1) Crimes Act 1900). Section 408 (2) Crimes Act 1900, however, states:
Nothing in subsection (1) affects the power of a court –
(g)to make an order in respect of an offender under section 403(1)(a).
Thus both sentencing options could be imposed notwithstanding s 408(1) Crimes Act 1900 provides that such an order is made under that subsection by releasing the offender “without passing sentence” upon her.
However, that was not what the learned magistrate purported to do. It seems to me that an order under s 408 Crimes Act 1900 could be made in reliance upon s 20AB Crimes Act 1914. The only question would be whether it could be made in addition to release on recognizance under s 20(1) Crimes Act 1914.
It is clear that von Doussa J in Adams v Carr (supra) considered that a compatible order could be made under s 20(1) (Crimes Act 1914) once the relevant State had become a participating State as this Territory is. The non-compliant order made by the magistrate in Adams v Carr (supra), was set aside and a compliant order made. It is clear that the making of a recognizance release order and the imposition of community service is contemplated by the Gazettal of 3 August 1990. It is also clear that, for the reasons Mr White advanced, the orders the learned magistrate made were, as were the orders in Adams v Carr (supra), noncompliant with s 20(1)(a) Crimes Act 1914. An order under s 408(1)(a) and 408(2)(g) could be made under s 20AB, though not under s 20(1) Crimes Act 1914. The terms of s 408(2)(g) are not sufficient to add a power to s 20(1) to impose a condition as to community service, though they do add to s 403(1) the option of adding a community service order to a recognizance release order though not making compliance with such an order a term or condition of it.
However, as from 2 June 2006, it has been open to a court in this Territory to impose a community service obligation as a term or condition of release on recognizance. In R v Shambayati (supra) the Court of Appeal of Queensland, as noted above, considered that such an order was compatible with s 20AB of the Crimes Act 1914, if the appellant had consented to it as the State Act required. Such a condition may, therefore, now be imposed in this Territory as a condition of a recognizance under s 20(1) Crimes Act 1914, such an option now being available under the laws of this Territory.
It should be noted that this appeal is an appeal which, once the order of review leads to the setting aside of the sentence imposed, is a rehearing and, as such, the court may exercise the sentencing powers and options now available, not merely those available at the time of the offence or the original sentencing hearing (see Shaw v Costerfield Gold and Antimony Mining Co (1870) 1 VR (M) 7; A v Law Society of Tasmania (2001) 10 Tas R 152 (Underwood J); Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192; Duralla Pty Ltd v Plant (1984) 2 FCR 342; Edwards v Noble (1971) 125 CLR 296).
An order under s 13 of the ACT Sentencing Act is not conditioned upon the offender’s consent. Nor is an order if made under s 20(1) Crimes Act 1914 as it is presently formulated (c.f. R v Shambayati). Thus an order can be made under s 20AB Crimes Act 1914 without the offender’s consent so far as sentencing proceedings in this Territory are concerned and, accordingly, community service may be required of an offender as a condition of a recognizance release order imposed under s 20(1) Crimes Act 1914 by virtue of s 20AB(1) Crimes Act 1914 applying as it does the additional sentencing option available under s 13 (ACT Sentencing Act). There is no doubt that the two provisions correspond as s 20AB Crimes Act 1914 contemplates. As I have noted, the same result could follow under s 20(1) Crimes Act 1914 if Adams v Carr (supra) was to be applied. However, it is unnecessary to decide whether Adams v Carr (supra) was correctly decided or not as Pincus JA conjectured in R v Shambayati.
It follows that, whilst this appeal is upheld, an order in similar terms should be substituted as was done in Shambayati (supra). I will hear the parties as to any consequential orders or directions.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 1 December 2006
Counsel for the appellant: Mr J White
Solicitor for the appellant: The Commonwealth Director of Public
Prosecutions
Counsel for the respondent: Mr G Theakston
Solicitor for the respondent: Legal Aid Office (ACT)
Date of hearing: 9 August 2006
Date of judgment: 1 December 2006
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