Vartuli v Ferns; Millington v Ferns
[2012] ACTSC 13
•January 31, 2012
DOMENICO ANTONIO VARTULI v LUKE ANTHONY FERNS
CHRISTOPHER MILLINGTON v LUKE ANTHONY FERNS
[2012] ACTSC 13 (31 January 2012)
APPEAL – against convictions imposed in the Magistrates Court – on the ground that the learned Magistrate erred in findings of guilty where the evidence did not support such a finding – no error found – appeal dismissed
APPEAL – against sentences imposed in the Magistrates Court – on the ground that the sentences were manifestly excessive – no error found – appeal dismissed
Crimes (Sentencing) Act 2005 (ACT), s 12
Criminal Code 2002 (ACT), ss 45, 45A
Crimes Act 1990 (NSW), s 351
Criminal Code Act 1995 (Cth), s 11.2
Explanatory Memoranda to the Criminal Code Bill 2005 (ACT)
Giorgianni v The Queen (1985) 156 CLR 47
R v Barbaro (ACTSC, 17 June 2010, Penfold J, unreported)
R v Buda-Kaa (ACTSC, 13 July 2011, Penfold J, unreported)
R v Dojcinoski (ACTSC, 17 June 2010, Spender J, unreported)
R v Kaldor (2004) 150 A Crim R 270
Gillies, P, The Law of Criminal Complicity (The Law Book Company Ltd, Sydney, 1980)
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 62 of 2010
No. SCA 63 of 2010
Judge: Burns J
Supreme Court of the ACT
Date: 31 January 2012
IN THE SUPREME COURT OF THE )
) No. SCA 62 of 2010
AUSTRALIAN CAPITAL TERRITORY ) No. SCA 63 of 2010
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DOMENICO ANTONIO VARTULI
Appellant SCA 62 of 2010
CHRISTOPHER MILLINGTON
Appellant SCA 63 of 2010
AND: LUKE ANTHONY FERNS
Respondent SCA 62 and 63 of 2010
ORDER
Judge: Burns J
Date: 31 January 2012
Place: Canberra
THE COURT ORDERS THAT:
Each of the appeals is dismissed.
Each of the appellants was charged by way of summons with one charge alleging that he on 22 May 2009 assaulted Samuel McKenzie and thereby occasioned to him actual bodily harm. To this charge each accused entered a plea of not guilty. After a contested hearing in the Magistrates Court each was convicted and sentenced to six months imprisonment, wholly suspended with a good behaviour order also imposed as required by s 12 of the Crimes (Sentencing) Act 2005 (ACT).
Each appellant now appeals from the orders made in the Magistrates Court, both in terms of conviction and sentence. The grounds of appeal in each case are:
a) the learned Magistrate’s findings of fact cannot be sustained by the evidence;
b) in the alternative, that the sentence imposed was manifestly excessive.
The charges arose out of an incident that occurred in Civic in the Australian Territory in the early hours of 22 May 2009. The prosecution case was that the appellants were part of a group that set upon another group of people, including the victim, and engaged in an unprovoked assault of the victim. On 20 August 2010 the learned Magistrate set out her findings of fact with respect to the charges:
That both the defendants Millington and Vartuli were the aggressors in the assault and that is by following the other group when the other group was trying to leave and by the abusive yelling by them to the other group. That the defendant Millington struck the first blow when he punched Samuel McKenzie to the face and put him to the ground. I find that the assault was unprovoked.
That the defendant Vartuli became involved immediately after Millington punched Sam McKenzie and after Steve McKenzie came to the aid of his son. I find that both defendants kicked Sam McKenzie several times to his face and his body while he was on the ground attempting to protect himself and I find that both are liable for the injuries sustained to Samuel McKenzie, namely to his face and to his body.
Counsel for the appellants, Mr Gill, concedes that it was open to the learned Magistrate to find that the appellant Millington struck the first blow when he punched the victim to the face, putting him on the ground. He also accepts that it was open to the learned Magistrate to find that the appellant Vartuli then became involved and that both appellants then kicked the victim several times to his face and body while he was on the ground. Mr Gill submitted that the evidence did not permit the learned Magistrate to make any finding of which injuries, if any, had been occasioned by the blows inflicted by each of the appellants. He submitted that under the Criminal Code 2002 (ACT) (the Code) as it stood at the time, the appellants could not be convicted on the basis of joint commission of an offence, as s 45A of the Code was not in force at the time, and they could not be found guilty of the offence on the basis of complicity under s 45 of the Code because they had not been charged on the basis of complicity.
I must say, on the basis that the learned Magistrate made a finding that each of the appellants kicked the victim several times whilst he was on the ground, a finding that is now not challenged, it was well open to her Honour to find that each had occasioned some degree of bodily harm to the victim. In itself, this is sufficient to dispose of each of the appeals against conviction, leaving open only the issue of whether the learned Magistrate was entitled to sentence the appellants on the basis that they were both responsible for the totality of the injuries inflicted on the victim. In deference to the arguments presented by counsel I will, however, consider not only that issue, but also whether it was open to her Honour to convict the appellants by virtue of the provisions of s 45 of the Code.
Accepting that s 45A was not in force at the relevant time, the relevant section of the Code is s 45:
45 Complicity and common purpose
(1) A person is taken to have committed an offence if the person aids, abets, counsels, procures, or is knowingly concerned in or a party to, the commission of the offence by someone else.
(2) However, the person commits the offence because of this section only if–
(a) either–
(i) the person’s conduct in fact aids, abets, counsels, or procures the commission of the offence by the other person; or
(ii) as a result of the person’s conduct, the person in fact is knowingly concerned in or a party to the commission of the offence by the other person; and
(b) when carrying out the conduct, the person either–
(i) intends the conduct to aid, abet, counsel, procure, or result in the person being knowingly concerned in or a party to, the commission of any offence (including its fault elements) of the type committed by the other person; or
(ii) intends the conduct to aid, abet, counsel, procure, or result in the person being knowingly concerned in or a party to, the commission of an offence by the other person and is reckless about the commission of the offence (including its fault elements) in fact committed by the other person.
(3) To remove any doubt, the person is taken to have committed the offence only if the other person commits the offence.
(4) Despite subsection (2), any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling, procuring, or being knowingly concerned in or a party to, the commission of the offence.
(5) A person must not be found guilty of aiding, abetting, counselling, procuring, or being knowingly concerned in or a party to, the commission of an offence if, before the offence was committed, the person–
(a) ended the person’s involvement; and
(b) took all reasonable steps to prevent the commission of the offence.
(6) A person may be found guilty of aiding, abetting, counselling, procuring, or being knowingly concerned in or a party to, the commission of an offence even if the person who committed the offence is not prosecuted or found guilty.
(7) To remove any doubt, if a person is taken to have committed an offence because of this section, the offence is punishable as if, apart from the operation of this section, the person had committed the offence.
(8) If the trier of fact is satisfied beyond reasonable doubt that a defendant committed an offence because of this section or otherwise than because of this section but cannot decide which, the trier of fact may nevertheless find the defendant guilty of the offence.
The appellants’ submission that they could not be convicted by virtue of s 45 of the Code, is, in my opinion, incorrect. The submission appears to rely upon the proposition that in order for the prosecution to seek to rely upon the provisions of s 45 in order to convict an accused person of an offence, the prosecution must allege in the body of the charge that the accused was an aider, abetter, counsellor or procurer.
The only authority provided by the appellants for this proposition was an ex tempore decision of R v Buda-Kaa (ACTSC, 13 July 2011, Penfold J, unreported) (Buda-Kaa). In that case the accused was charged with one count of aggravated burglary and one count of theft. The Crown case was that the accused was one of three men who entered the house of the alleged victim and removed nominated property. The other two men had not been identified and had not been charged. The evidence established that two of the men had entered the premises, while the third man was outside the premises. The evidence did not establish which of the three men was the accused.
Noting that in order to convict the accused of burglary, there must be evidence that the accused “had put at least part of his body inside the building”, Penfold J concluded that at its highest the evidence did not establish this element of the offence. Turning to the question accessorial liability, her Honour said:
Where an offence appears to have been committed by two or more persons acting together, s 45A of the Criminal Code as now in force would permit one of those persons to be found guilty of the offence in certain circumstances, even if not all the elements of the offence can be proved against the particular person. However, that section of the Criminal Code was not in force in December 2009, so no reliance can be placed on it in this trial. There may be other offences that could have been charged, such as aiding and abetting under s 45 of the Criminal Code, but they have not been charged in this trial.
I do not read the last sentence in the above extract as necessarily providing authority for the proposition put forward by the appellants in this case. It is not clear to what extent the Crown had particularised its case in Buda-Kaa as alleging that it was the accused who entered the premises. However, to the extent that the decision suggests that before the prosecution may rely upon the provision of s 45 there must be a charge before the court specifically alleging the accused is guilty of an offence by reason of being an aider or abetter, I must respectfully disagree.
At common law it is not necessary to frame a charge alleging the commission of an offence as principle in the second degree by using the words “aid and abet”, or either of them, in the charge, although for clarity it may be desirable to do so. In Giorgianni v The Queen (1985) 156 CLR 473 (Giorgianni) the appellant appealed from orders of the New South Wales Court of Criminal Appeal dismissing an appeal from his conviction on five charges of culpable driving causing death and one charge of culpable driving causing grievous bodily harm. The convictions arose out of a collision that occurred when the appellant’s truck, which was being driven by an employee of the appellant, collided with a number of vehicles due to dangerously defective brakes. The Crown case was that the appellant procured his employee to drive the truck in its defective condition. The indictment charged the appellant with offences of culpable driving. In framing the indictment in this way the Crown relied upon s 351 of the Crimes Act 1990 (NSW), which was in the following form:
“ Any person who aids, abets, counsels or procures, the commission of any misdemeanour, whether the same is a misdemeanour of Common Law or by any statute, may be indicted, convicted and punished as a principal offender”.
With respect to s 351, Mason J (as he then was) said:
“It has been recognised that provisions such as s.351 do not themselves create substantive offences but are declatory of the common law and procedural in nature...In misdemeanour, as distinct from felony, a person who aids, abets, counsels or procures the commission of an offence...is regarded for all purposes of procedure as a principal offender”
The fact that the offence charged in Giorgianni was a misdemeanour as distinct from a felony is, for present purposes, immaterial. The common law position with respect to principals charged with a felony was the same. In Peter Gillies “The Law of Criminal Complicity” (The Law Book Company Ltd, Sydney, 1980) the common law position is set out succinctly:
“It is well established that at common law a person charged as a principal in the first degree may be convicted upon proof that he actually aided and abetted, without any obligation being imposed on the Crown to obtain leave to amend the indictment. The contrary is also true. It has occasionally happened, when there has been doubt as to the exact role of a principal in a crime, that he has been charged in two separate counts in the alternative as a principal in the first degree and as an aider. Strictly, this is unnecessary. The prosecution is permitted this flexibility because of common law both the perpetrator of felony and the person who aids and abets him, are classified as “principals” (being principals in the first and second degree respectively)”. (at p 189)
At common law, therefore, a person charged with either a felony or a misdemeanour could be convicted of an offence if the jury were satisfied that he aided and abetted the commission of the offence. The converse was also true. In more recent times the wisdom of the procedure of charging an aider and abetter with the principal offence has been called into question, as in the plurality judgment of Wilson, Deane and Dawson JJ in Giorgianni:
“Where s. 351 is applicable, it permits the indictment to be framed in this way, but it is an undesirable practice because it does not make clear the real nature of the case against the accused...Upon the assumption that s.351 applied, it was plainly preferable in order to avoid the possible confusion of the jury, to have added sufficient particulars to indicate how it was that the appellant was charged with the offences against him”.
Mr Gill submits that the common law position on this issue of procedure no longer applies in this Territory since the passing of the Criminal Code 2002 (ACT). He submits as his principal position that s 45 creates an offence of aiding, abetting, counselling or procuring an offence. Alternatively, he submits that since the passing of the Code the Crown must charge an accused as an aider and abetter where it wishes to rely upon s 45 of the Code to convict the accused.
With respect to his primary position, Mr Gill refers to s 45 (4) of the Code and seeks to draw support from the reference therein to “the offence of aiding, abetting, counselling, procuring or being knowingly concerned in or a party to, the commission of an offence”. Mr Gill submits this supports a legislative intention for s 45 to create a separate offence.
In my view, the use of these words in s 45 (4) is not intended to indicate that s 45 creates a separate offence. Section 45 (4) is intended to apply to cases where the Crown alleges liability on the part of the accused for an offence by virtue of the provisions of s 45. It provides that any special liability provisions apply to an offence prosecuted in this way, in the same manner as they apply to the offence generally.
One only has to contrast the language of s 45 (1), set out above, with that of s 44 (1) to observe that s 45 (1) is not intended to create a separate offence, whereas s 44 (1) does:
44 (1)If a person attempts to commit an offence, the person commits the offence of attempting to commit that offence.
I cannot agree with Mr Gill’s principal submission. It is quite clear that s 45 of the Code does not create an offence, but merely provides a way in which a person may commit an offence. A provision of similar effect, s 11.2 (1) of the Criminal Code Act 1995 (Cth), was so interpreted in R v Kaldor (2004) 150 A Crim R 270 (Kaldor). This section provides:
A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
The charge in Kaldor did, in fact, allege on its face that the accused procured the commission of an offence by DG. The problem was, the Crown accepted that DG was an innocent agent. The accused was convicted and on appeal Adams J, who would have upheld the appeal, said:
It seems to me that, despite his Honour’s earlier reference to s 11.2 of the Code, both he and counsel understood the issue to be simply whether Kaldor used Gurvich as his instrument or agent to import the heroin and that whether Gurvich was himself guilty of an offence was immaterial. This was, however, a material misreading of the indictment, upon which Kaldor could only be convicted if Gurvich had committed the offence of importing the heroin.
Howie J, with whom Dunford J agreed, took a different view, and did not consider that the allegation that the accused had procured the commission of an offence by Gurvich to be an element of the charge:
“In my opinion the reliance in the charge on s.11.2 of the Code was a mere particular indicating the manner in which the Crown alleged that the appellant was guilty...
In my view the allegation in the charge that the appellant had procured Gurvich in terms of s.11.2 was merely a particular and can be disregarded as mere surplusage so far as the statement of the charge is concerned”. (at .293)
The form of a criminal charge alleging culpability as an aider and/or abettor is a matter of procedure or practice. I see nothing in s 45, or in the Code generally, that indicates a legislative intention that it is to govern matters of criminal procedure. This is consistent with the contents of the Explanatory Memorandum to the Criminal Code 2002 (ACT), which says in relation to Chapter 2 (including s 45):
“Chapter 2 of the Bill sets out general principles of criminal responsibility, which will eventually apply to all ACT offences”.
Chapter 2 of the Code deals with matters of criminal responsibility, not criminal procedure. Section 45 does not purport to govern the appropriate form of a charge sought to be proved by virtue of its provisions. Common law practices and procedures, as developed by the courts, still govern this issue. As such, the prosecution may charge an accused with an offence, relying on the provisions of s 45, without referring to the particulars of proof set out in s 45 itself. Whether it is wise or appropriate to do so is debateable. Undoubtedly the Crown can be called upon to make clear the way in which it alleges the accused has committed the offence by the provision of particulars prior to any trial, or as part of its opening at trial. Criminal lawyers have long been aware of the need to establish the basis of the Crown case through particulars, a practice which unhappily appears to have fallen into desuetude in this Territory.
To this point I have refrained from referring to s 45 (8), but I will now turn to it because, in my view, its provisions are sufficient to determine this aspect of the appeal. It provides:
(8) If the trier of fact is satisfied beyond reasonable doubt that a defendant committed an offence because of this section or otherwise then because of this section but cannot decide which, the trier of fact may nevertheless find the defendant guilty of the offence”.
Mr Gill submits that this provision only applies when an accused is charged with an offence by virtue of s 45. If that were the case, it would lead to the anomalous position that in the circumstances referred to in the provision a person alleged to have committed an offence by virtue of s 45 could be convicted as a principal, but a person charged with an offence as a principal could not be convicted. On its face s 45 (8) is not so narrow. There is no warrant in the language of the provision to read in such a limitation, nor is any such intention to be implied from the context of the provision. Section 45(8) is a sensible provision, intended to address cases like the present where the evidence establishes guilt either as a principal offender or as an aider and abetter, but does not allow for a precise determination of into which category the offender falls. The justice of such a provision is manifest: those who are proved to have committed crime, either as the principal offender or as someone aiding and abetting the principal offender, should not escape punishment because the evidence does not allow them to be neatly categorised.
Returning to the facts relevant to this appeal, counsel then appearing for the appellants before the learned Magistrate apparently did not seek particulars from the prosecutor as to the basis of the prosecution case. The only matter of particulars raised was by counsel for the appellant Millington, who sought confirmation that the second charge of common assault against his client was an alternative to the charge of assault occasioning actual bodily harm. The prosecutor made no opening address, a common practice in summary hearings, and counsel for the appellants did not call for one. As such, it appears to me that there was nothing to preclude the prosecution putting the case to the learned Magistrate with respect to each of the appellants in the alternative: either they were principals (in the sense that they themselves assaulted the victim occasioning thereby actual bodily harm) or an aider and abetter (in that they were present and by their actions encouraging and assisting the person whose assault inflicted the actual bodily harm as the victim). The prosecutor’s submissions to the learned Magistrate did not directly address the issue of whether he sought to rely upon the provisions of s 45, but they are not inconsistent with such an approach. I note that Mr Gill (who did not appear below) makes no submission that the way the prosecution conducted the case before the learned Magistrate made it unfair for the prosecution, then or now, to seek to rely upon the provisions of s 45.
In any event, the provisions of s 45 (8) apply no matter how the prosecution put its case to the learned Magistrate. The learned Magistrate was entitled to find that each of the appellants was guilty of the offence either on the basis that they personally occasioned the bodily harm to the victim, or that that aided and abetted whoever did. It follows from his finding that the learned Magistrate was entitled to convict and sentence the appellants on the basis that they were equally culpable with respect to the injuries sustained by the victim.
Turning now to the second ground of appeal, Mr Gill submits that the sentences imposed by the learned Magistrate were manifestly excessive. In order to address this ground it is necessary to provide some background information about the appellants. At the time of the offence the appellant Vartuli was 22 years old. He was 23 years old at the time of sentencing. The appellant Millington was aged 20 at the time of the offence, and aged 21 at the date of sentencing. The appellant Vartuli had no previous criminal history, and the appellant Millington was recorded for multiple offences of driving with the prescribed concentration of alcohol in his blood.
In a pre-sentence report prepared for the learned Magistrate, it was noted that the appellant Vartuli was the eldest of five children. His parents separated when he was quite young. Nevertheless he has a supportive relationship with his parents. He also reported a continuing good relationship with his siblings. When he was nine years of age, Vartuli reported that he and some family friends were involved in a boating accident resulting in him being stranded at sea for a number of days before being rescued. He then spent some days in hospital. About one or two years later he commenced experiencing issues relating to depression. He reported that he is currently in a de facto relationship and had been for approximately three years. He attended primary and high schools in the ACT, NSW and WA and completed Year 12. After leaving school he completed his Certificate II in Security and various tickets allowing him to work on building sites. He has been in constant employment since he completed his schooling. He reported first consuming alcohol in his late teenage years, and that he would drink alcohol to the point of intoxication when he attended social engagements. He does not have a history of using illicit drugs. He told the author of the pre-sentence report that he is in good physical health, although he reported that following the boating accident and bullying issues at high school he developed depression and was prescribed medication. He has used medication on and off to cope with his depression.
A pre-sentence report was also prepared for the appellant Millington. At the age of three he was diagnosed with Acute Lymphoblastic Leukaemia. He underwent 18 months of chemotherapy. Some six months later there was a relapse resulting in a further 18 months of chemotherapy and a bone marrow transplant. As his immune system was compromised whilst undergoing treatment he spent a considerable amount of time isolated from his family and friends. He also suffered side effects from the chemotherapy resulting in seizures. As a consequence he suffers from a “droopy eye”. In 1997 there was a further relapse which resulted in further chemotherapy and radiation therapy. An outcome of this last phase of treatment has been a reduced capacity to produce normal levels of testosterone. This has necessitated the administration of synthetic testosterone by injection every three months at a dose dependant on his testosterone level at that time. The illness and its treatment resulted in interruption of the appellant’s schooling. In the period leading up to the appellant’s regular testosterone therapy he reports that his energy levels are low and he feels lethargic and irritable. The author of the pre-sentence report noted while side effects with the therapy are not common, mood changes and increased aggression can be a possible side effect. I note that it does not appear that the appellant complained of these particular side effects other than irritability. In his summary assessment the author of the pre-sentence report hypothesised a possible connection between the appellants continuing medical treatment, his consumption of alcohol on the evening of the offence and the offending behaviour.
As noted by the author of the pre-sentence report, it is difficult to assess the part that the appellant Millington’s illnesses and treatment may have played with respect to his offending behaviour. It is regrettable that further evidence addressing this issue was not put before the learned Magistrate if she was to be asked to give any significance to this issue. No further evidence has been put before me, and I find it quite impossible to determine that the appellant Millington is entitled to any significant mitigation of sentence based upon these issues.
Mr Gill referred me to two cases as part of his submissions that the sentences imposed by the learned Magistrate were manifestly excessive. The first was R v Dojcinoski (ACTSC, 17 June 2010, Spender J, unreported). Dojcinoski was charged with one count of assault occasioning actual bodily harm. He was 22 years old at the time of the offence. The offence occurred in the early hours of the morning of 6 October 2008, during part of a birthday celebration. The sentencing remarks of Spender J do not contain a detailed account of the offence, but his Honour does refer to Dojcinoski having inflicted one kick on his victim whilst the victim was on the ground. His Honour also refers to injuries which, whilst un-particularised, were said to be serious but not of a permanent nature. Dojcinoski apparently had no prior convictions. His Honour imposed a combination sentence comprising a fine of $600.00 and a good behaviour order for a period of six months.
In the absence of a full description of the injuries inflicted by Dojcinoski, it is difficult to compare that case with this. In addition, there is no allegation contained in the sentencing remarks of Spender J that Dojcinoski was in company at the time that he committed the offence.
The second case Mr Gill took me to was the matter of R v Barbaro (ACTSC, 17 June 2010, Penfold J, unreported). The accused Barbaro was found guilty by a jury of assault occasioning actual bodily harm. In the early hours of the morning outside a nightclub, Barbaro punched his victim once to the face. The victim suffered a fractured cheek bone and upper jaw, and bruising around the eye. The victim underwent reconstructive surgery and had ongoing deficits to his eyesight and breathing as a consequence of his injuries. He also suffered anxiety as a result of the attack upon him. Barbaro was 22 years old and had no previous convictions. Her Honour imposed a good behaviour order for a period of 18 months, with supervision by ACT Corrective Services and 80 hours community service. In the course of her sentencing comments, her Honour said:
“I have said on another occasion that an offence of this sort might, for a person without a criminal record deserve a good behaviour order, possibly with a fine or community service order attached, while a person with a history of such offences could expect a prison sentence, possibly suspended in whole or part”.
With the greatest of respect to her Honour, I cannot endorse this statement. I prefer not to speak in terms of penalties that are generally appropriate for offences under s 24: each case must be determined on its own merits. But it is appropriate to observe that the maximum penalty for this offence is five years imprisonment, and the infliction of a fractured jaw and cheekbone is towards the upper end of injuries that may be classified as actual bodily harm. I note, however, that Barbaro only delivered one blow as opposed to the numerous blows each of the appellants delivered to their victim, and that it was not alleged that he had committed his offence in company. In addition, the victim in Barbaro was standing when he was struck by Barbaro and thus had some prospect of being able to defend himself. In the present case, the appellants kicked their victim whilst he was helpless on the ground. I do not consider the decision in Barbaro to be of assistance with respect to this appeal.
Whilst I accept that the appellants had no prior history of committing offences of violence, and the appellant Vartuli had no prior criminal history at all, their attack justified significant punishment. The delivery of multiple kicks to the head of a victim who is helpless on the ground calls for a sentence not only imposing significant punishment, but also providing a high level of deterrence to others who may be minded to engage in this type of crime. In my opinion, the sentences imposed by the learned Magistrate cannot be said to be manifestly excessive.
I certify that the preceding thirty six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 31 January 2012
Counsel for the appellants: Mr S Gill
Solicitor for the appellant: Kamy Saeedi Lawyers
Counsel for the respondent: Ms T Lee
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 12 December 2011
Date of judgment: 31 January 2012