Director of Public Prosecutions v Reed - [2023] ACTSC 310

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Reed
Citation:	[2023] ACTSC 310
Hearing Date:	26 October 2023
Decision Date:	1 November 2023
Before:	Mossop J
Decision:	See [72].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – arson – offender started fire at doors of Old Parliament Housing during a public protest – fire caused significant damage to the building – consideration of political protest context – offending went beyond the types of protest which may be dealt with leniently due to significance of public protest as a part of democracy – offending in the mid-range of objective seriousness – sentence of imprisonment and good behaviour order imposed CRIMINAL LAW – STATUTORY INTERPRETATION – Whether a protective service officer is a “territory public official” for the purposes of s 361 of the Criminal Code 2002 (ACT) – consideration of specific categories of person identified as a “territory public official” – parties invited to provide further submissions on whether a protective service officer falls within the chapeau to the definition of a “territory public official”
Legislation Cited:	Australian Federal Police Act 1979 (Cth), ss 4, 14H, 40B, 40D, 40EA, 40EC, 40F(1)(b), Div 4 of Pt II Criminal Code 2002 (ACT), ss 300, 361(1), 404(1), Ch 3 Crimes (Sentencing) Act 2005 (ACT), s 35A Legislation Act 2001 (ACT), ss 7, 13 Public Sector Management Act 1994 (ACT)
Cases Cited:	DPP v Luscombe (unreported, District Court of New South Wales, Kirkham DCJ, 28 January 2000) R v Burgess; R v Saunders [2005] NSWCCA 52; 152 A Crim R 100 R v CA (No 2) [2016] ACTSC 371; 316 FLR 49 R v Catts (1996) 85 A Crim R 171 R v Wrigley [2015] ACTSC 114 The Queen v Latona and McCabe (unreported, Supreme Court of the Australian Capital Territory, Penfold J, 19 November 2012)
Parties:	Director of Public Prosecutions Nicholas Reed ( Offender)
Representation:	Counsel S Saikal-Skea ( DPP) J Sabharwal ( Offender)
Solicitors Director of Public Prosecutions Bevan & Co Lawyers & Conveyancers ( Offender)
File Numbers:	SCC 145 of 2023 SCC 146 of 2023

MOSSOP J:

Introduction

These proceedings are sentencing proceedings relating to Nicholas Reed.
On 4 September 2023, a jury found Mr Reed guilty of the offence of arson, contrary to s 404(1) of the Criminal Code 2002 (ACT) (CAN 325/2022). The maximum penalty is 1500 penalty units or 15 years’ imprisonment or both.
Mr Reed also pleaded guilty to a transfer charge of obstructing a territory public official, contrary to s 361(1) of the Criminal Code 2002 (ACT) (CAN 1126/2022). The maximum penalty is 200 penalty units or two years’ imprisonment or both.

Facts

The facts relating to the arson must be found in a manner consistent with the verdict of the jury, based on the evidence presented at the criminal trial. The jury found Mr Reed guilty of the offence of arson. The principal issue at trial was one of identification. The jury concluded beyond reasonable doubt that the person alleged by the prosecution to be Mr Reed was, in fact, Mr Reed.
The offending took place in the context of a protest at Old Parliament House (OPH) on 30 December 2021. The protests had been peacefully going on for a number of days in the vicinity of what is known as the Aboriginal Tent Embassy. Mr Shillingsworth, who was found guilty by the jury of aiding or abetting arson, was a leader of the protest, who made speeches at the site on the day of the fire and the previous day. Those speeches were on themes concerning Aboriginal people: sovereignty, genocide, children in care, the need for justice and the need to take a stand about such issues.
As a result of activities before 30 December 2021, sand had been placed in the carpark of OPH immediately in front of the steps leading up to the portico and main entrance to OPH. There was evidence that a fire had been lit on this sand on previous days.
Protesters were milling around under the portico outside the main entrance to OPH. On the previous day, after a speech by Mr Shillingsworth, protesters, including Mr Shillingsworth and Mr Reed, had marched up the steps and banged on the doors, symbolically seeking entry while chanting “Always was, aways will be, Aboriginal land”.

Arson (CAN 325/2022)

On 30 December 2021, Mr Reed arrived at OPH in a car that was registered in a family member’s name. He parked it in the OPH car park. He removed a bag and some shields from the car and placed them at the steps of OPH. He then assisted in lighting a fire on the patch of sand in the OPH car park.
At 11.10am, one of the protesters painted over one of the CCTV cameras under the portico. With Mr Shillingsworth’s encouragement, another protester painted over the other camera under the portico. Mr Shillingsworth and other protesters then painted over the glass panelling of the main entry doors of OPH. At 11:19am, CCTV footage from the cameras on the exterior of OPH depicts Mr Reed walking between the fire on the sand and the portico. Mr Reed is holding a wooden shield and scoops hot coals from the fire on top of it, before carrying the coals in the direction of the portico. He disappears from the view of the camera before re‑emerging without the hot coals. Mr Reed repeats this action several times. At around this time, Mr Shillingsworth pursued some police officers who had come out of OPH, shouting at them in an aggressive manner through a megaphone until they retreated into the building. He then made a speech at the side door of OPH to which the police had retreated. Mr Reed was not shown to have been near him at the time.
At 11.23am, 11.26am and 11.28am, Mr Reed ran away from OPH, returning each time with a pile of sticks. Each of those bundles of sticks was added to the fire, at least one of them proven beyond reasonable doubt to have been added by Mr Reed personally. That is proven by one of the social media videos obtained by the police, which shows the fire burning at the front doors of OPH. At 23 seconds into the video, Mr Reed can be seen putting a bundle of sticks on top of the fire. At that stage, the fire was burning vigorously up to approximately 1.5 m up the doors and the timber of the doors was blackening. It is the conduct involving starting and feeding the fire at the doors of OPH which constitutes the arson offence.
He then took a long-handled axe back to the carpark and collected two boomerangs from the car. He returned to the group under the portico. It was at this point that a number of Australian Federal Police (AFP) officers came out of OPH and ascended the steps from the south‑east. The protesters had, at this point, linked arms to form a barrier around the edge of the portico and resisted police attempts to break through so as to permit them to extinguish the fire. During this confrontation, Mr Reed grabbed the radio of protective service officer Daniel Minney. The radio was attached to his vest and Mr Reed ripped it off with his right hand while he pushed Mr Minney with his left. Mr Minney fell down the stairs but was caught by AFP officers. This is the conduct giving rise to the charge of obstructing a territory public official.
Because of the resistance of the protesters and in order to avoid a more violent confrontation, police were directed by the officer in charge to cease their attempts to break through the line of protesters to deal with the fire and were directed to retreat back into OPH by the door from which they had come.
After this, as the fire expanded, the protesters left the portico area. At 11.36am, the fire had expanded so as to engulf the whole of the portico. Mr Reed’s car was driven away at 11.43am, just as a fire engine arrived at the front of OPH.
The damage caused to the building was very significant.
(a)There was severe damage to the entrance doors and canopy located at the front of the building.
(b)There was damage to the windows on either side of and above the entrance doors to the building together with the light fittings.
(c)Sprinklers in the foyer ceiling, directly behind the entrance doors, were activated.
(d)Smoke and acrid soot penetrated into the rooms behind the entrance, including the Kings Hall, House of Representatives and Senate rooms, contaminating the walls, ceiling, furniture, and contents including artwork and artefacts.
The costs incurred by the Commonwealth were met through a claim on the Commonwealth self-insurance scheme known as Comcover. The costs included both technical costs relating to the assessment of the damage, repair costs and project management costs relating to those repairs. The cost of repairing the damage was $5,192,857.72 (exclusive of GST). There were also additional costs of $65,869.95 (exclusive of GST) involved in the assessment and management of the claim.

Objective seriousness

In placing the hot coals and sticks at the front doors of OPH, Mr Reed intended to start a fire which would damage the doors. That intention was manifested again when he stoked the fire with more sticks at a point where the fire was substantial and visibly damaging the doors. He was reckless as to more substantial damage to the building in that he was aware of a substantial risk that the lighting of the fire would cause damage that went beyond the doors against which it was lit.
Summarising the most significant features of the offending relevant to sentence (see R v Wrigley [2015] ACTSC 114 at [34]):
(a)The fire was lit in the manner described. It did not involve the use of an accelerant.
(b)The offending was intentional, but the extent of planning was likely to be low. The extent of premeditation is not clear.
(c)The reason that the offending occurred was for the purposes of a public protest.
(d)There was some risk to life as would be inherent in the burning of any occupied public building, but in the circumstances the much greater potential was for harm to property rather than to persons.
(e)Very substantial damage was caused to the building surrounding the portico and to the doors themselves. The cost of rectification was millions of dollars, largely because of the historical status of the building. That status was one of the reasons that it was a target of the protest.
I would place this offending in the mid-range of objective seriousness for offending under s 404(1) of the Criminal Code.

Subjective circumstances

The personal circumstances of Mr Reed are explained in a pre-sentence report and in a psychological report prepared by Leesa Morris, a forensic psychologist.
The offender is 32 years old. He is unmarried and has no children. He is the youngest of two children of his parents. He was born in Gippsland in Victoria. He had an unremarkable childhood except that there was a period of 20 months in around 1992 where his father was absent.
He became heavily involved with Aboriginal people in 2019. That was in the context of protests against the duplication of the Western Highway, which was to be built on the lands of the Djabwurrung Aboriginal people. Between 2019 and 2021, he was involved in attempts to disrupt land development by the Victorian government. Notwithstanding the absence of any Aboriginal ancestry, he has adopted the Djabwurrung name Wareywaa Kirlwiwl Yarrawirri.
Since the offending he has lived with his parents.
He completed school to Year 12 although he had some learning difficulties as a young child. He has been unemployed since 2013 and is reliant upon social welfare payments. He told the author of the pre-sentence report that he was heavily influenced by his co‑offenders and that the offence was not premeditated but rather spurred by passion for social issues and a desire for sovereignty.
He was assessed by the author of the pre-sentence report as having a low risk of reoffending. He is assessed as not suitable for community service work because he resides in Victoria.
Ms Morris’ report presents an unusual picture of the offender. She concluded that he had no specific psychological or personality disorder, although he described some behaviours and symptoms which “may indicate that he has Autism Spectrum Disorder”. However, Mr Reed denied permission to interview his parents so his learning difficulties and matters relevant to Autism Spectrum Disorder could not be investigated further.
Insofar as the report describes his history and attitude to the offending, it uses quotes from the offender. This appears to be because it would be difficult for Ms Morris to otherwise capture his unusual use of language. That is significant for her conclusion that:
Mr Reed presented as a man who attempts to linguistically distract others from his emotional and developmental shortcomings. His description of his life history and functioning depicts a man who is ‘lost’ in his difficulties learning and understanding the non-structured world around him. Mr Reed appears to have found some routine and social formality in the Djab Wurrung community that does not remind him of his difficulties in achieving in academic and occupational domains.
He was assessed by Ms Morris as having a moderate risk of reoffending given his lack of engagement with prosocial activities and conventions.
The oral evidence given by Mr Reed was consistent with, and tended to reinforce, the assessment of him by Ms Morris. Mr Reed’s evidence appeared to acknowledge some regret for the fact that the conduct was not “honourable”, but otherwise it was difficult to understand the points that he was making. I think that the most that can be taken from his evidence is that he regrets his actions on the day because of the adverse consequences for him and for the cause which he was supporting.

Criminal history

The offender has a limited criminal history. In 2021, he was convicted of a Commonwealth offence of knowingly producing a false or misleading document and given a good behaviour order. He was also dealt with in 2022, for a charge of remaining in a restricted area by way of a non-conviction order and a fine. It is not clear when that offence occurred.

Time in custody

Mr Reed spent three days in custody following his arrest prior to grant of bail.

Consideration

The offending in this case took place in the context of a political protest. Having regard to what was said by the co-offender Mr Shillingsworth, the protest related to the past and present treatment of Aboriginal people. OPH was the venue for such protests because it was close to the Aboriginal Tent Embassy and symbolic of Australian government institutions. The doors of OPH became a focus because Mr Shillingsworth indicated that entry through the doors of the building would be a symbolic way for the protesters to address the grievances of the protesters against the Australian government or governments more generally.
Public protest articulating dissatisfaction with government action or inaction is an accepted component of representative and responsible government. Those who are powerful or well-connected do not need to protest publicly in order to express their displeasure at government action or inaction. They may do so through private representations, public statements or through direct or indirect financial means of influence. However, those without such power or connections must use other means. Amongst a variety of means of influencing government is public protest. Public protest is effective because it creates a spectacle to which society pays attention. Where there are large numbers of people involved in such protests it is not difficult to create a spectacle to which society will pay attention. However, apart from sheer numbers, attention may be gained in other ways. Visible public acts may command attention because they differ from a traditional public rally in some way. They may create a spectacle or cause some inconvenience to which governments, often through the involvement of police, must respond. This helps to ensure that the existence of the protest comes to public attention through the media and hence to the public and the government.
Protests which seek to command public attention may involve some relatively minor infringements of the law. These will often be dealt with in a lenient manner by both the executive government in making charging decisions and by the courts in determining the appropriate sentences for such offending. That is the case because of the recognition of the significance of public protest as a part of a democracy. However, there is inevitably a temptation for those seeking to command social attention to go beyond such minor offending and engage in acts which involve significant criminality. Significant damage to property, arson or conduct causing physical injury to others are examples of actions which will undoubtedly get public attention and hence have the potential to make known the complaints of the protesters. However, the significant harm done to others means that, although undertaken in order to raise a political point, they must be treated by the law in a way that recognises their significant criminality notwithstanding their underlying political motivation. It is by this means that social order is maintained and the process of political change is generally contained within the guardrails of a peaceful democracy. That is not to deny that significant acts of criminality may be important in social movements for change within democracies. Rather, it is to recognise that part of the power of protests involving such acts of criminality as spurs for social change is that the ordinary criminal law consequences of such conduct flow to the perpetrators, rather than because the perpetrators are excused or treated leniently because of their political motivations. In other words, it is the inevitable response of the state to the criminal conduct and the punishment of the protestor for that conduct that gives that form of protest its power.
That the ordinary consequences must flow from a deliberate breaking of the law, notwithstanding any sympathy that the court or a substantial segment of the public has for the political goals of those committing the offences, reflects the fundamental principle of equal applicability of the law to all persons. It is appropriate to adopt the words of Kirkham DCJ in DPP v Luscombe (unreported, District Court of New South Wales, Kirkham DCJ, 28 January 2000) a case involving a Greenpeace protest, quoted by Penfold J in the The Queen v Latona and McCabe (unreported, Supreme Court of the Australian Capital Territory, Penfold J, 19 November 2012):
Our society functions as a democracy with equal applicability of the law to all persons … No one group has the right to expect more lenient treatment than the other because their goals are perceived by some to be public spirited having, it may be said, wide community support. It would be, with respect, a recipe for justifiable discontent within our community if mercifully weak penalties were applied in these cases and not in others falling under the same banner but not having the general public support that Greenpeace may well enjoy.
For these reasons, while the political motivation of the offending is clearly a matter that is relevant to sentencing as it distinguishes the conduct from more usual motivations for arson, it does not provide a basis for leniency either generally or based upon any view of the court as to the desirability of the political sentiment expressed in the protest during which the offending occurred.
In the present case, I do not consider that specific deterrence of Mr Reed is a principal sentencing consideration. While Mr Reed clearly maintains his political beliefs, I consider him unlikely, having regard to what has occurred in relation to this charge and what is known about his subjective circumstances, to be at a significant risk of further serious offending. While specific deterrence must play some role in any overall sentence, general deterrence is a much more significant consideration. That is because, as I have explained, the boundary between acceptable and unacceptable public protests must be maintained and it is important to deter those with strong political views from embarking on protests that involve substantial damage to persons or property as a means of gaining public attention. The sentence imposed must also recognise the harm done to the victim, in this case the Commonwealth, in the form of very substantial rectification costs.

Counsel for the Director of Public Prosecutions (DPP) referred the court to a number of cases in which sentences have been imposed for actions arising out of political protests as well as a selection of sentencing decisions from the Supreme Court relating to charges of arson generally. The general arson charges disclosed custodial sentences for arson involving significant property damage with starting points of between 15 months and 27 months where the ultimate sentence was sometimes required to be served by full-time imprisonment but, more often, was suspended after a period or served by way of intensive correction order (ICO).
The protest-related sentences from this jurisdiction and others involved a range of different types of offending but demonstrated the imposition of custodial sentences of some sort in appropriate cases. Three of those cases are worth specific mention.
R v Catts (1996) 85 A Crim R 171 involved firebombing of the French honorary consulate in Perth as a protest against French nuclear testing. The honorary consulate was occupied by two specialist medical practitioners and substantial damage to the property was caused. A sentence of 12 months’ imprisonment was found to be manifestly inadequate and a sentence of two and a half years would have been imposed but for the fact that it was a Crown appeal, which led to a sentence of two years being imposed.
R v Burgess; R v Saunders [2005] NSWCCA 52; 152 A Crim R 100 involved the painting of “No War” on one of the sails of the Sydney Opera House. The removal of the painting involved substantial expense for which compensation of $111,000 was required to be paid in addition to some $40,000 that had already been paid. The appellants had been sentenced to a fixed term of nine months’ imprisonment to be served by way of periodic detention. Their appeal was dismissed.
The Queen v Latona and McCabe involved a Greenpeace protest in which the offenders had used brush cutters to destroy an experimental crop of genetically modified wheat as a protest arising because of concerns about the health and environmental impacts of growing the wheat crop and the lack of transparency concerning the way in which it was conducted. This led to the whole experiment being written off. Greenpeace had paid $282,560 as reparations, being the amount identified as the cost of reinstating the lost experiment. The starting point for the sentences was 12 months reduced to nine months on account of the plea of guilty and cooperation with law enforcement authorities. These sentences were wholly suspended.
Each of these cases may be seen as consistent with the approach that I have outlined earlier in that each involved damage to property either by reason of direct damage (Catts, Latona and McCabe) or through the infliction of significant rectification costs (Burgess). They therefore went beyond the types of protest which may be dealt with leniently by reason of the significance of public protest as an inherent part of democracy.
The DPP sought a reparation order in the sum of $5000. This figure was arrived at by taking an excess of $10,000 payable pursuant to a claim made on the Commonwealth’s self-managed insurance fund, Comcover, and dividing it between the two offenders, Mr Reed and Mr Shillingsworth. That amount contrasts with the loss assessment and repair costs in excess of $5 million. Those costs will be borne by the Commonwealth because Comcover is a self-insurance scheme. The prosecution proceeded on the basis of the reasoning in R v CA (No 2) [2016] ACTSC 371; 316 FLR 49 even though it was recognised that the reasoning in that case would not be applicable in circumstances of a self-insurance scheme. That was for the pragmatic reason that an order for reparation reflecting the actual cost of the damage to the Commonwealth would be practically meaningless because of the offender’s lack of means.
In my view, it is not appropriate to impose any reparation order. Such an order would only be effective if made a condition of a good behaviour order. Having regard to the nominal amount sought, the lack of means of Mr Reed and the sentence that will be otherwise imposed upon him, I consider that the making of a reparation order would serve no useful purpose.
Counsel for the offender submitted that having regard to the manner in which the trial was run, a reduction in sentence under s 35A of the Crimes (Sentencing) Act 2005 (ACT) was appropriate. The trial was initially estimated to run for 10 days. In fact, it was concluded in three days. This was largely due to the decisions made by the prosecutor to reduce the volume of evidence that was led. That course was adopted with the cooperation of counsel for Mr Reed and warrants a reduction in his sentence.
Having regard to the nature of the property damaged and the extent of damage caused and having considered possible alternatives, I consider that no penalty other than a sentence of imprisonment is appropriate.
The starting point for the sentence is 24 months’ imprisonment reduced by one month pursuant to s 35A to 23 months. The offender has been assessed as unsuitable for a community service work condition as he resides in Victoria. For the same reason, he is not a person for whom an ICO is available. In any event, I do not consider that an ICO would be an appropriate disposition given the magnitude of the harm caused by the arson and the lack of any criminogenic factors that might be addressed during the term of an ICO. The purposes of sentencing will be met if he serves a period of full-time detention of eight months (reduced from nine months pursuant to s 35A) prior to the suspension of his sentence of imprisonment. That will be subject to a good behaviour order for the period of two years. The sentence will be backdated to take account of the period that he has already spent in custody.

Transfer charge

The transfer charge is as follows:
That he in the Australian Capital Territory on 30 December, 2021 did obstruct a public official namely, Dan Minney in the exercise of his function as a public official of the Territory knowing that he was a public official.
The offence is created by s 361(1) of the Criminal Code 2002 (ACT). As at the relevant date, that section provided:
361 Obstructing territory public official
(1)A person commits an offence if—
(a)the person obstructs, hinders, intimidates or resists a public official in the exercise of his or her functions as a public official; and
(b)the person knows that the public official is a public official; and
(c)the public official is a territory public official; and
(d)the functions are functions as a territory public official.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
(2)Absolute liability applies to subsection (1)(c).
(3)Strict liability applies to the circumstances that the public official was exercising the official’s functions as a public official.
(4)In this section:
function—
(a) in relation to a person who is a public official—means a function that is given to the person as a public official; and
(b) in relation to a person who is a territory public official—means a function given to the person as a territory public official.
The facts agreed for the purposes of the guilty plea are that Mr Minney was a “Protective Service Officer”. That is not a defined concept but, I infer, is a reference to a protective service officer within the meaning of the Australian Federal Police Act 1979 (Cth) (AFP Act).
In order for s 361(1) to be applicable, a protective service officer must be a “territory public official” for the purposes of s 361(1)(c).
Section 361 of the Criminal Code is within Ch 3 of the Code. Section 300 provides definitions for Ch 3 and defines “territory public official” as follows:
territory public official means a person having public official functions for the Territory, or acting in a public official capacity for the Territory, and includes the following:
…
(g)a public servant;
(h)an officer or employee of a territory authority or instrumentality;
(i)a statutory office-holder or an officer or employee of a statutory office-holder;
(j)a police officer;
…
Leaving aside the terms of the chapeau in that definition, the specific categories of person referred to in the definition are as follows.
“Police officer” is defined by the Legislation Act 2001 (ACT) as follows:
police officer means a member or special member of the Australian Federal Police.
Who meets that definition is determined by the AFP Act as at the date of the offence. References to a “member” in the Act mean “a member of the Australian Federal Police”: s 4 of the AFP Act, definition of “member”.
“Member of the Australian Federal Police” is defined as any of the following:
(a) the Commissioner of Police;
(b) a Deputy Commissioner of Police;
(c) an AFP employee in respect of whom a declaration under section 40B is in force.
Section 40B, which is referred to in the above definition, provides:
40B AFP employees who are members of the Australian Federal Police
The Commissioner may, by writing, declare an AFP employee (other than a protective service officer) to be a member of the Australian Federal Police if the Commissioner is satisfied that the employee meets the requirements specified in a determination under section 40C.
Note 1: A person who is currently a protective service officer may be declared to be a member if the person ceases to be a protective service officer.
Note 2: This section does not prevent a protective service officer from being appointed as a special member.
Section 40D permits the Governor-General, by commission, to declare a member to be a commissioned police officer.
Section 40EA provides:
40EA AFP employees who are protective service officers
The Commissioner may, by writing, declare an AFP employee (other than a member) to be a protective service officer of the Australian Federal Police if the Commissioner is satisfied that the employee meets the requirements specified in a determination under section 40EB.
Note 1: A person who is currently a member may be declared to be a protective service officer if the person ceases to be a member.
Note 2: This section does not prevent a member from being appointed as a special protective service officer.
Section 40EC allows the Commissioner to appoint a person as a special protective service officer.
It is apparent from the above provisions that the AFP Act draws a distinction between an AFP employee who is a “member” and an AFP employee who is a “protective service officer”. These provisions indicate that a person is not a “member of the Australian Federal Police” if they are a “protective service officer”.
The definition of “police officer” in the Legislation Act should, in my view, be read as picking up the concepts that exist in the AFP Act of “member” and “special member”. By doing so, they exclude protective service officers from the meaning of “member” in the definition of “police officer” in the Legislation Act.
When the parties were asked to explain how Mr Minney came within the scope of “territory public official”, counsel for the prosecution, with the agreement of counsel for Mr Reed, referred to s 14H of the AFP Act, which was said to define “police officer” to include “a member, however described, of a police force of a State or Territory”.
Section 14H is a provision which provides definitions for the purposes of Div 4 of Pt II of the Act. That division defines the powers and duties of members, special members and protective service officers relating to protective service functions. For the purposes of that division, “police officer” is defined as follows:
police officer means:
(a) a member or special member; or
(b) a member, however described, of a police force of a State or Territory; or
(c) a member, however described, of a police force of a foreign country.
The division then defines certain powers of “designated persons” and of “police officers”. It has no relevance to who might constitute a “member or special member of the Australian Federal Police” for the purposes of the definition of “police officer” in the Legislation Act. Further, even if the definitions were, somehow, applicable, it is clear that the definition in s 14H draws a distinction between “a member or special member” referred to in para (a) and members of police forces of a State or Territory referred to in para (b). For these reasons, notwithstanding the agreement of the parties, I do not accept that s 14H means that Mr Minney was a “territory public official” for the purposes of s 361(1) of the Criminal Code.
So far as the other possibly relevant paragraphs are concerned, the position is as follows.
A protective service officer is not a public servant. The Legislation Act defines a “public servant” as a “person employed in the public service”. The Act defines “public service” as the “Australian Capital Territory Public Service”. The AFP does not form part of the ACT public service, nor the Australian Public Service. This is clear because s 40F(1)(b) of the AFP Act provides for the Commissioner to second an AFP employee to the Australian Public Service.
A protective service officer is not an officer or employee of a territory authority or instrumentality. A protective service officer is necessarily an employee of the AFP. However, the AFP is not a “territory authority”. The Legislation Act defines a “territory authority” as “a body established for a public purpose under an Act but does not include a body declared by regulation not to be a territory authority”. The meaning of an “Act” for the purpose of the Legislation Act is “an Act of the Legislative Assembly” (s 7 Legislation Act). As the AFP Act is a Commonwealth Act and not an Act of the ACT Legislative Assembly, the AFP is not a territory authority for the purpose of s 300 of the Criminal Code. Likewise, it is not a “territory instrumentality” under the Public Sector Management Act 1994 (ACT).
A protective service officer is not a statutory office-holder, nor an officer or employee of a statutory office-holder. The Legislation Act defines a “statutory office-holder” as a “person occupying a position under an Act or statutory instrument (other than a position in the public service)”. As indicated above, an “Act” is an Act of the Legislative Assembly (s 7 Legislation Act), and therefore the AFP Act does not fall within the definition. The Legislation Act defines a statutory instrument as:
13 Meaning of statutory instrument
(1)A statutory instrument is an instrument (whether or not legislative in nature) made under—
(a)an Act; or
(b)another statutory instrument; or
(c)power given by an Act or statutory instrument and also power given otherwise by law.
(2)A statutory instrument includes a subordinate law, disallowable instrument, notifiable instrument and commencement notice.
(3)A reference to a statutory instrument includes a reference to a provision of a statutory instrument.
Again, the AFP Act is not a statutory instrument for the purpose of the Legislation Act.
Having regard to the fact that I have reached a conclusion which is inconsistent with the agreed position of the parties, I will hear them further as to whether or not Mr Minney might fall within the chapeau to the definition of “territory public official” and, if not, whether this charge should be dismissed or some other course should be followed.

Orders

As I have indicated, I will hear the parties further in relation to the charge of obstructing a territory public official (CAN 1126/2022). I will however, at this stage, make the following orders:
1.On the charge of arson (CAN 325/2022), the offender is convicted and sentenced to 23 months’ imprisonment commencing on 29 October 2023 and ending on 28 September 2025.
2.The sentence is suspended after the offender has served eight months’ imprisonment upon him entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
3.I grant liberty to have the matter relisted before Mossop J on two days’ notice to address the outstanding transfer charges.

I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 9 November 2023