Director of Public Prosecutions v Shillingsworth

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Shillingsworth
Citation:	[2024] ACTSC 40
Hearing Date:	23 February 2024
Decision Date:	23 February 2024
Before:	Mossop J
Decision:	See [77]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aiding and abetting arson – offender assisted principal offender to start fire at the doors of Old Parliament House during a public protest – fire caused significant damage to the building – consideration of political protest context – offender held leadership role in the protest – offending went beyond the types of protest which may be dealt with leniently due to significance of public protest as a part of democracy – effect of sentence on dependents – suspended sentence and good behaviour order imposed
Legislation Cited:	Crimes Act 1900 (ACT), ss 26A, 120(2) Criminal Code 2002 (ACT), ss 45, 404(1), 300, 361(1) Crimes (Sentencing) Act 2005 (ACT) ss 10, 35A
Cases Cited:	DPP v Reed [2023] ACTSC 310
Parties:	Director of Public Prosecutions Bruce Shillingsworth ( Offender)
Representation:	Counsel B Morrisroe ( DPP) J Sabharwal ( Offender)
Solicitors Director of Public Prosecutions Self-represented ( Offender)
File Numbers:	SCC 186 of 2022 SCC 187 of 2022

MOSSOP J:

Introduction

On 4 September 2023, a jury found Bruce Shillingsworth guilty of the offence of aiding and abetting arson, contrary to ss 45 and 404(1) of the Criminal Code 2002 (ACT) (CAN 650/2022). Due to the operation of s 45(7), the maximum penalty for the offence is the same as for the offence of arson, that is, 1500 penalty units or 15 years’ imprisonment or both.
Mr Shillingsworth pleaded guilty to the transfer charge of defacing public property, contrary to s 120(2) of the Crimes Act 1900 (ACT) (CAN 652/2022). The maximum penalty is 10 penalty units.
There are two further transfer charges which Mr Shillingsworth contests. They are:
(a)Assaulting a frontline community service provider, contrary to s 26A of the Crimes Act 1900 (ACT) (CAN 651/2022). The maximum penalty is two years’ imprisonment.
(b)Obstructing a Territory public official, contrary to s 361(1) of the Criminal Code 2002 (ACT) (CAN 653/2022). The maximum penalty is 200 penalty units or two years’ imprisonment or both.

Facts

The facts relating to the offence of aiding and abetting arson must be found based upon the evidence presented at the criminal trial, in a manner consistent with the jury’s verdict of guilty. To the extent that the facts found involve matters of aggravation, they must be found beyond reasonable doubt.
The jury found Mr Shillingsworth’s co-offender, Mr Reed, guilty of the principal offence of arson. The principal issue in relation to Mr Reed was one of identification. The principal issue in relation to Mr Shillingsworth was whether his conduct amounted to aiding and abetting the arson.
The offending arose in the context of a protest at Old Parliament House (OPH) on 30 December 2021. The protest had been peacefully going on for a number of days in the vicinity of what is known as the Aboriginal Tent Embassy. Mr Shillingsworth was a leader of the protest. He made speeches on the site on the day of the fire and on 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 car park of OPH immediately in front of the steps leading to the portico and main entrance to OPH. There was evidence that a fire had been lit on the 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 asserting that a “notice of eviction” had been served, protesters, including Mr Shillingsworth and Mr Reed, had marched up the steps and banged on the doors, symbolically seeking entry while chanting, “Always was, always will be, Aboriginal land”.
On 30 December 2021, Mr Reed arrived at OPH and parked his car 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. This is the charge of defacing public property (CAN 652/2022) to which Mr Shillingsworth pleaded guilty.
At 11:19am, CCTV footage from the cameras on the exterior of OPH shows 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, before carrying the coals in the direction of the portico. He disappears from the view of the cameras before re‑emerging without the hot coals. Mr Reed repeats this action several times. At the time this is occurring, Mr Shillingsworth can be seen picking up clapping sticks and standing on the portico. At 11:20am, he motions to the people in the area to come up to the portico. As a result of Mr Shillingsworth’s request, people come up to the portico and form up into a ring around the three sides of the portico. People in the ring around the portico link their arms. Their presence obscures any view of and prevents access to the area where the fire is being started. Mr Shillingsworth stands on the inside of the ring, continuing to use his clapping sticks. He was in a position to clearly observe what was occurring in relation to the starting of the fire and the progress of the fire after it had been started.
At about 11:23am, 11:26am and 11:28am, Mr Reed ran away from OPH, each time returning a few minutes later with a pile of sticks. Each of those bundles of sticks was added to the fire. At 23 seconds into one of the tendered videos, 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. Mr Shillingsworth was in a position where he could and did see that the fire had been started and observed its progress.
Mr Reed 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, at about 11:33am, that a number of Australian Federal Police officers came out of OPH and ascended the steps from the south‑east. The protesters, including Mr Shillingsworth, adjusted their position so that they were predominantly facing towards the oncoming police and resisted police attempts to break through to extinguish the fire. It was during this confrontation that Mr Shillingsworth is alleged to have obstructed and committed the assault upon Constable Eiffert (CAN 651/2022, CAN 653/2022).
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 the departure of police, Mr Shillingsworth gestured from the middle of the crowd, indicating that they should leave the portico. Over the next two minutes, the crowd disbursed rapidly from the portico and flames from the fire at the doors extended across the matting on the floor and the ceiling of the portico so as to fully engulf it. By 11:36am, the fire had expanded so as to engulf the whole of the portico. The first fire engine arrived at 11:43am.
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 King’s 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.

Aiding and abetting arson (CAN 650/2022)

At the trial, the prosecution stated that Mr Shillingsworth aided and abetted the arson committed by Mr Reed by doing the following:
(a)indicating to another protestor to cover a camera with paint or something that would obscure the camera’s vision;
(b)gesturing to the other protestors to come up onto the portico just before they came up and stood in formation around where the fire was burning; and
(c)holding the line with other protestors when police tried to intervene and put out the fire.
At 11:19am, the CCTV footage from the security cameras located inside the portico shows Mr Shillingsworth picking up a bowl filled with brown paint. He makes eye contact with another protestor and gestures towards a security camera with the bowl. Mr Shillingsworth hands the bowl to the protestor and points at the security camera before turning away. Seconds later, the camera’s view is covered by brown paint.
At 11:20am, the CCTV footage from the cameras on the exterior of OPH shows Mr Shillingsworth gesturing with his arms for the protestors to gather on the portico. As a result of Mr Shillingsworth’s actions, the protestors congregate on the top step and form a U shape facing outwards, with their arms linked. Body worn camera footage from police who attended the portico shows Mr Shillingsworth standing in formation with the other protestors and resisting attempts by the police to break through the line of protesters to gain access to the fire.
The acts recorded by the CCTV and body worn camera footage establish that Mr Shillingsworth facilitated Mr Reed to light the fire at the front doors of OPH and prevented police officers from accessing the fire to put it out, thus aiding and abetting Mr Reed to cause damage to the property by fire.
The verdict of the jury indicates that it was satisfied that Mr Shillingsworth aided and abetted the arson in at least one of the ways particularised. I am satisfied beyond reasonable doubt that each of the particularised aspects of conduct occurred and aided or abetted Mr Reed in causing damage to OPH by fire.

Decision on the transfer charges

Assaulting a frontline community service provider (CAN 651/2022)

One of the transfer charges against Mr Shillingsworth is assaulting a frontline community service provider, contrary to s 26A of the Crimes Act. The relevant “frontline community service provider” was Constable Jacob Eiffert, a police officer.
There were two sources of evidence going beyond that which was admitted in the jury trial, which were relied upon in order to establish that charge. The first was the footage from Constable Eiffert’s body worn camera. The second was oral evidence given by Constable Eiffert.
The oral evidence described the officer and a group of other officers approaching the protesters who had formed themselves in a U shape around the three sides of the portico. They were standing in formation. Constable Eiffert and the officers attempted to push through the people in an attempt to get them off the stairs. He indicated that he felt himself and his clothing and vest being grabbed and punched and shoved while he was attempting to get through the lines of people. He gave no specific evidence about Mr Shillingsworth, but his evidence was sufficient to indicate that the body worn camera footage that had been admitted into evidence was from his body worn camera. The prosecution tendered footage from an officer’s body worn camera. In cross-examination, Constable Eiffert said he was struck multiple times. He said he was not clear on the description of the people that struck him.
Thus, the prosecution case was very much dependent upon the video footage.
The video footage runs for a total of one minute and 21 seconds. It shows the group of police officers approaching the portico from the eastern side and attempting to push their way through the line of protesters who were surrounding the fire on the portico. The protesters had linked arms and formed a U shape around the edge of the three open sides in order to prevent police getting to the fire.
Consistent with his leadership role shown in the other video evidence admitted at the trial, Mr Shillingsworth can be heard shouting “Hold!” as the police attempt to get through the line of protesters. The footage shows police trying to firmly and methodically make their way through the line of protesters. Their path is obstructed by the protesters who have linked arms so as to prevent passage between them. At times, the camera is obscured by people’s bodies.
At 24 seconds into the footage, it is possible to see that the fire at the front door of the building is burning well, with flames up to approximately 1.5 to 2 m off the ground. There is evidence of blackening of the doors at this stage.
From 28-31 seconds, the camera’s view is obscured. It is initially covered by a dark grey colour similar to the shirt colour of another protestor. At about 30 seconds, the footage fades to white.
At 31 seconds, the audio begins. The camera view shifts from facing in the direction of the fire to facing in the direction of the windows on the left-hand side of the portico. Mr Shillingsworth comes into view in the centre of the frame, facing directly towards Constable Eiffert. Both Mr Shillingsworth and Constable Eiffert appear to be located at the bottom of the steps around the portico and a window of OPH can be seen behind Mr Shillingsworth. Mr Shillingsworth then turns to his left and looks back up towards the portico.
At 32 seconds, Constable Eiffert turns left towards the windows where two protestors are tussling with two police officers. Mr Shillingsworth is out of the view of the camera to its right. Constable Eiffert then turns back to his right (back towards the portico and the burning doors).
At just before 33 seconds, there is a rattling sound and Mr Shillingsworth’s hand appears in front of the camera. His fingers are splayed and covering the camera. His body is facing to the right of Constable Eiffert.
At 33 seconds, Mr Shillingsworth’s upper body is in full view on the right-hand side of the footage. He is facing to the right of Constable Eiffert and his body appears tilted, with one leg on an upper step and one leg on a lower step. Mr Shillingsworth steps back up to the portico, drawing his hand towards his body. He is still facing away from Constable Eiffert.
At 34 seconds, Mr Shillingsworth is back in line with the other protestors on the top step of the portico. His attention is directed to the activities of other police further along the line of protesters. At that point, the police were deploying capsicum spray towards the protesters.
There can be no doubt that Mr Shillingsworth came into contact with Constable Eiffert for approximately one second at about 32-33 seconds into the video. The submission that Mr Shillingsworth made was that it was not possible to reject the reasonable possibility that the contact was accidental and caused by him over balancing from the steps of the portico towards the Constable. I do not accept that submission. It is inconsistent with what can be seen on the video, namely, that Mr Shillingsworth is down the steps of the portico immediately prior to the contact, facing directly towards the Constable prior to making his way back up the steps and immediately before, or in the course of doing so, puts his hand out so as to briefly come into contact with the body worn camera. The conclusion that it was not accidental is also consistent with Mr Shillingsworth’s obvious intention to prevent Constable Eiffert and other police from penetrating the line of protesters.
As a consequence, I am satisfied beyond reasonable doubt that Mr Shillingsworth put his hand on Constable Eiffert, that he did so intentionally and that Constable Eiffert did not consent to that contact. I am also satisfied beyond reasonable doubt that Constable Eiffert was a police officer and therefore fell within the definition of a “frontline community service provider”. Further, I am satisfied that Mr Shillingsworth knew that Constable Eiffert was a police officer at the time the contact occurred. I am satisfied beyond reasonable doubt that the officer was exercising a function given to him as a police officer, namely, in accordance with instructions given to him by the officer in charge, attempting to break through the line of protesters in order to quell the fire that was burning at the front doors of OPH.
The offence is therefore proved.

Defacing public property (CAN 652/2022)

Mr Shillingsworth pleaded guilty to an offence against s 120(2) of the Crimes Act, namely, that he unlawfully made a mark with paint on public property. The mark was caused when he applied paint to the glass portions of the front doors of OPH.

Obstructing a Territory public official (CAN 653/2022)

The evidence in support of this charge comes principally from the body worn camera of Constable Eiffert, but also from the other CCTV footage. The obstruction involved participating in the barrier of people preventing police from ascending the steps of the portico and addressing the fire which, by that stage, was extending 1.5 m up the doors and had started to burn the doors themselves. Mr Shillingsworth intentionally engaged in conduct that obstructed Constable Eiffert and he knew that Constable Eiffert was a public official at the time as he was obviously a police officer wearing a police uniform. A Territory public official includes a police officer: Criminal Code s 300. In attempting, along with other police, to get access to the fire, Constable Eiffert was exercising his functions as a police officer. This offence is therefore proved.

Objective seriousness

Aiding and abetting arson

In relation to Mr Reed, I concluded as follows (DPP v Reed [2023] ACTSC 310 at [17]‑[18]):
17․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.
18.I would place this offending in the mid-range of objective seriousness for offending under s 404(1) of the Criminal Code.

To “aid” someone to commit an offence is to assist the principal offender to commit the offence. To “abet” refers to encouragement of the principal offender at the time that the offence is committed. In the present case, the aiding and abetting was significant for the carrying out of the principal offence. Mr Shillingsworth was clearly a leader of the protest, as was demonstrated by his conduct on the day of the arson and the day before. He was therefore influential in the conduct of others. The masking of the CCTV camera was significant because it denied to police on the inside of the building real-time knowledge of what was occurring underneath the portico and hence was significant in allowing the principal offender to both light the fire and cause damage to the building as the fire progressed. The gesturing to the crowd to come up to the portico was significant because that resulted in the crowd forming a barrier around the fire, which ultimately prevented police from getting access to the fire when they attempted to do so at 11:33am. That was significant in allowing the fire to spread further, as it did by 11:37am, and then until it was extinguished by firefighters. His participation in the crowd in resisting entry by the police was part of the same process.
There is only limited evidence of premeditation. Even though Mr Reed was shown to be in the presence of Mr Shillingsworth on the previous day, it is only possible to conclude beyond reasonable doubt that there was some coordination with Mr Reed in the minutes before he commenced starting the fire at the doors.
Overall, the culpability of Mr Shillingsworth for his aiding and abetting is significant, but less than that of the principal offender, Mr Reed.

Assaulting a frontline community service provider

The offences of assaulting a frontline community service provider and obstructing a Territory public official both related to Constable Eiffert and both occurred during the period when Mr Shillingsworth and the other protesters were resisting the entry of police. This forms part of the particularised conduct that aided or abetted Mr Reed. There is therefore a significant overlap in the acts involved and the culpability of the offender. The assault was a very minor one, lasting only a very short period of time. It did, however, involve conduct directed to a police officer trying to do his job. Notwithstanding that, the offending is in the low-range of objective seriousness.

Obstructing a Territory public official

The obstruction involved deliberate interference with an attempt by police officers to minimise the damage caused by the arson. It is much more significant than the assault. It involved noisy physical obstruction of the police officers as they attempted to do their duty. It is in the mid-range of objective seriousness for this offence.

Defacing public property

This offending involved the application of paint to glass on the doors of OPH. OPH is a significant national institution. The defacing only covered a small area. But for the destruction of the doors during the fire, it would have been possible to remove the paint. The purpose of the act was to obscure what was about to occur in front of the doors. The offending is in the mid-range of objective seriousness for this offence.

Subjective circumstances

Mr Shillingsworth is a 32-year-old Aboriginal man. He grew up Brewarrina in rural north‑west New South Wales (NSW). His family relocated to Sydney when he was 15 years old in order to allow him and his two siblings to have access to better education. He remains close to his immediate family.
He has four children. His marriage broke down in 2018. His children are aged 12, 11, 8 and 6. He has sole custody of the children. They have no contact with their mother but some contact with her family.
He lives in public housing in NSW in the inner-south of Sydney with his children and his sister.
He completed secondary education. While at school, he also worked as a youth worker in his spare time. He worked full-time as a youth worker once he had graduated from high school. At the age of 26, he commenced work as a caseworker in child protection. He worked in that area for three years and then obtained some other employment described as “policy for First Nations children”. This appears to have been for an organisation known as AbSec.
In 2018, he gained sole custody of his children. He bought a house in Bourke in 2020, but moved back to Sydney as his eldest child approached high school age in order to have greater educational opportunities for his children.
The pre-sentence report records that he left the workforce in order to care for his children. The chronology of his employment would indicate that this was sometime after 2018, but the chronology is not clear.
He also reported that he has provided “cultural services” such as welcomes to country, traditional performances and smoking ceremonies to local communities, schools and businesses. He has occasionally received payment for those services. Otherwise, he is currently dependent upon government parenting allowance. He does not have any problems with drugs. He is in good mental and physical health.
He did not know Mr Reed prior to the events at OPH. He indicated that he did not intend for the outcome of the burning to be of such severity. He denied that it was premeditated. He described colonisation and systemic mistreatment of First Nations people as motivating factors for his offending. He minimised his individual responsibility, with the author of the pre-sentence report recording that he said, “if proper dialogue of communication had taken place between the Commonwealth and First Nations peoples, the risks involved with the event that took place could have been mitigated”.
He showed some empathy towards the frontline workers who had responded to the incident. He gave some oral evidence which, consistent with what was reported in the pre‑sentence report, did not indicate any significant remorse in relation to the damage to property or the cost of repair of that damage.
He was assessed by the author of the pre-sentence report as having a low risk of reoffending and requiring a minimal level of supervision in the community. He was assessed as not suitable for a community service work condition because he did not live within the ACT.
Counsel for the offender tendered a number of references. A reference from Daniel Boland, a Commissioner of the NSW Scouts, attests to his involvement with Mr Shillingsworth and his family over 10 years. That included cooperation with him on a number of community projects between 2013 and 2018, some involving Scouts and some involving other institutions. He indicates that Mr Shillingsworth is “very passionate about his culture and community responsibilities to share his knowledge and concerns when he sees injustice”. He says that he has “utmost respect for Bruce as a young person of goodwill and [sees] him as a respected, knowledgeable, international indigenous leader [and] as a future ambassador for our country”. Another reference from a close friend of six years describes his close family circumstances, the circumstances of his children and projects that she has undertaken with Mr Shillingsworth between 2019 and 2023. These activities were principally focused upon providing assistance to Aboriginal people in north-west NSW. She attests to the fact that he is “an intelligent, deeply spiritual young man, a proud Murruwarri/Budjiti man with respect for roles and responsibilities in his culture” and he is “optimistic that people can be agents of positive change”.
There were also references relating to the progress of his young children, praising Mr Shillingsworth’s parenting, and his commitment to the promotion of Aboriginal culture.

Criminal history

Mr Shillingsworth has a very limited criminal history. Prior to the present offending, it involved only a minor driving offence. Subsequent to the present offending, he was convicted and fined for obstruction of a driver or pedestrian and failing to comply with a direction of a police officer. Those offences occurred in March 2022. There were then some orders made in July 2023, arising from the publication of material from those earlier court proceedings. That involved the recording and then publishing on social media of some of the proceedings in the Bourke local court. That offending was dealt with by conditional release orders made without a conviction.

Time in custody

Mr Shillingsworth spent two days in custody attributable to this offending.

Consideration

Mr Shillingsworth is undoubtedly entitled to be an agitator. He is entitled to express his political views loudly and, if he sees fit, in a manner that is annoying to government officials. The problem is that on this occasion he has, in addition to doing so, committed specific offences, one of which is quite serious. I adopt what I said in DPP v Reed concerning the political nature of the protests as the context in which the offending occurred. At [31]-[35] I said as follows:
31.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.
32.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.
33.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.
34.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 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.
35.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.
I also adopt what I said about comparable sentences in DPP v Reed at [38]-[42].
The subjective circumstances of Mr Shillingsworth are favourable. He has family support, no difficulties with alcohol or drugs and a full-time occupation as a single parent caring for his four young children. He is also engaged with others in community activities, providing charitable assistance for Aboriginal people in north-west NSW and public awareness of Aboriginal culture. The evidence did not disclose how he was able to take time away from his caring responsibilities to participate in the protests that led to the offending.
He has a limited criminal history.
He only demonstrated limited remorse in relation to his conduct. While he recognised that the police and museum officials were people who were just doing their job, he did not demonstrate any significant remorse in relation to the property damage that was caused. That appeared to reflect his continuing political views about the lack of responsiveness of government institutions to the circumstances of Aboriginal people. Consistent with the attitudes expressed in the CCTV footage of the protests, in his evidence in court, he appeared to regard OPH as a legitimate target, having regard to his perception of the impact of laws made there upon Aboriginal people.
Although he was not involved in the physical acts undertaken by Mr Reed, his acts of aiding and abetting were significant ones which were consistent with his leadership role. It is relevant to take into account that leadership role both in assessing the objective seriousness of the particularised acts constituting the offence, but also insofar as it indicates a need for specific deterrence. The evidence at the trial indicated that, so far as the protesters were concerned, Mr Shillingsworth was a forceful and charismatic leader. That demonstrates the clear need for specific deterrence so as to ensure that his energies are channelled into forms of dissent which do not involve criminal offending.
The sentencing options available in relation to Mr Shillingsworth have been narrowed as a result of his residence in NSW. Neither an intensive correction order nor a requirement to perform community service are available options because of his residence in NSW.
The prosecution did not seek any reparation order.
The sentence imposed on Mr Reed was a sentence of 23 months, which was suspended after eight months’ imprisonment. The sentence was reduced from 24 months by reason of s 35A of the Crimes (Sentencing) Act 2005 (ACT) (CS Act) because of the cooperation by counsel for Mr Reed with counsel for the prosecution in focusing the evidence in a way that substantially shortened the hearing. Mr Shillingsworth was unrepresented at the trial, but acquiesced in the case being presented in the manner that it was. In my view, it is appropriate that he get a similar benefit pursuant to s 35A as did Mr Reed.
A custodial sentence involving full-time detention would obviously have an impact upon his young children. Even though he has significant family support, particularly from his parents, the impact of full-time custody upon his four children would likely be significant, having regard to the fact that he is a sole parent.
The threshold in s 10 of the CS Act is clearly passed, having regard to the extent of the damage caused and the significance of Mr Shillingsworth’s conduct in the causing of that damage.
In determining the appropriate sentence, I have taken into account the two days that he spent in custody.
In my view, the appropriate starting point is a sentence of imprisonment of 19 months, reduced to 18 months pursuant to s 35A of the CS Act. Counsel for Mr Shillingsworth submitted that, particularly in light of his subjective circumstances, a wholly suspended sentence would be an appropriate outcome. Counsel for the prosecution indicated that she did not wish to be heard against that proposition.
In my view, the matter may be dealt with by way of a wholly suspended sentence, but only in combination with a longer than usual good behaviour order and a fine. So far as the good behaviour order is concerned, that will be for a period of three years and six months in order to ensure that the potential for a period of full-time detention remains available if Mr Shillingsworth does not completely keep out of trouble during that period. In particular, having regard to his strongly held political views, the requirement for good behaviour will ensure that any social activism on his part remains within the guardrails necessary for a peaceful democracy. Further, I consider that a fine is appropriate notwithstanding his modest financial circumstances in order to ensure that, even in circumstances where community service is not an available option, there are some definite punitive consequences for his offending.
So far as the other offences are concerned, these are less significant and can be dealt with by fines or other orders.

Orders

The orders of the Court are:
1.On the charge of aiding and abetting arson (CAN 650/2022):
(a)The offender is convicted and sentenced to 18 months’ imprisonment which sentence is wholly suspended forthwith upon entry into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years and six months from today and subject to the further condition that he comply with the fine order made today.
(b)The offender is fined the sum of $8000 which is required to be paid within three years.
2.On the charge of defacing public property (CAN 652/2022), the offender is convicted and fined $200 to be paid within 12 months.
3.On the charge of assaulting a frontline community service provider (CAN 651/2022), the offender is convicted and fined $100 to be paid within 12 months.
4.On the charge of obstructing a Territory public official (CAN 653/2022), the offender is convicted and required to enter into a good behaviour order for a period of 12 months.

I certify that the preceding seventy-seven [77] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 4 March 2024

[2024] ACTSC 40

23 February 2024