Sentence Parity Appeal in NSW Court of Criminal Appeal

The Court of Criminal Appeal granted an extension of time and leave to appeal but dismissed the appeal on the grounds of sentence parity, emphasising the importance of considering the objective seriousness of the offences and the roles of the participants.

OUTCOME: Dismissed

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME_1] v R [2022] NSWCCA 217 Hearing dates: 21 September 2022 Date of orders: 5 October 2022 Decision date: 05 October 2022 Before: Beech-Jones CJ at CL at [1] Price J at [41] Yehia J at [42] Decision: (1) The applicant be granted an extension of time to apply for leave to appeal against the sentence imposed on him by Harris DCJ on 12 March 2020 up to and including 9 June 2022; (2) The applicant be granted leave to appeal against the sentence imposed on him by Harris DCJ on 12 March 2020 and the sentence imposed on him by Buscombe DCJ on 29 January 2021; and (3) The appeals in both matters be dismissed. Catchwords: SENTENCING – parity – no question of principle Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) [ADDRESS] 1998 (NSW) Cases Cited: Cameron v R [2017] NSWCCA 229 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 DS v R [2014] NSWCCA 267 Kelly v R [2017] NSWCCA 256 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Martellotta v R [2021] NSWCCA 168 Miles v R [2017] NSWCCA 266 Category: Principal judgment Parties: [NAME_3] (Applicant) Rex (Respondent) Representation: Counsel: [redacted] [NAME_4] (Respondent)

Solicitors: [redacted] [NAME_7] (Respondent) File Number(s): 2019/74045, 2019/229443 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 12 March 2020 Before: Harris DCJ, Buscombe DCJ File Number(s): 2019/74045, 2019/229443

JUDGMENT 1. BEECH-JONES CJ at CL: This matter involves two applications for leave to appeal against sentences imposed for two kidnapping offences. With both applications, the sole ground of appeal is that there is a lack of parity between the two sentences imposed on the applicant and an aggregate sentence imposed on a co-offender, [NAME_8] ("[NAME_8]"), for three offences, two of which were the same offences committed by the applicant.

2. For the reasons that follow I do not accept that the sentence imposed on [NAME_8] gives rise to a justifiable sense of grievance on the part of the applicant. I would grant the applicant an extension of time to bring the applications and leave to appeal but I would dismiss the appeal.

Background 1. On 12 March 2020, the applicant was sentenced by [NAME_9] Judge Harris as a consequence of his pleading guilty to a charge that he did on 14 November 2018 take and detain [NAME_10] with intent to obtain an advantage while being in company with others, including [NAME_8], and cause actual bodily harm to [NAME_10] contrary to s 86(3) of the Crimes Act 1900 (NSW) (the "[NAME_10] offence"). The maximum penalty for the offence is 25 years' imprisonment and there is no standard non-parole period. [NAME_9] sentenced the applicant to imprisonment for 6 years commencing on 12 March 2019 and expiring on 11 March 2025 with a non‑parole period of 4 years expiring on 11 March 2023.

2. On 29 January 2021, the applicant was sentenced by his Honour Judge Buscombe after pleading guilty to a charge that he did on 30 April 2018 detain [NAME_11] with the intention of obtaining an advantage, namely information relating to [NAME_12], while he was in the company of others, including [NAME_8], contrary to s 86(2)(a) of the Crimes Act (the "[NAME_12] offence"). The maximum penalty for an offence under s 86(2)(a) is 20 years' imprisonment. His Honour sentenced the applicant to imprisonment for 2 years and 10 months commencing 12 March 2022 and expiring on 11 January 2025 with a non-parole period of 1 year and 6 months expiring on 11 September 2023. His Honour also made an order under s 18B of the [ADDRESS] 1998 (NSW) referring the applicant to the [ADDRESS] to determine whether he should be subject to a Compulsory Drug Treatment Order.

3. The combined effect of the two sentences imposed on the applicant is that he will serve a total sentence of 6 years' imprisonment commencing 12 March 2019 and expiring on 11 March 2025 and a non-parole period of 4 years and 6 months expiring on 11 September 2023.

4. On 29 January 2021, Judge Buscombe imposed a sentence on [NAME_8] for three offences to which [NAME_8] pleaded guilty namely the [NAME_10] offence, the [NAME_12] offence and an offence of intentionally damaging a dwelling house by fire contrary to s 195(1A) of the Crimes Act. The maximum penalty for an offence under s 195(1A) is 11 years' imprisonment. His Honour imposed an aggregate sentence of imprisonment for 7 years and 6 months with a non‑parole period of 5 years. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Act"), his Honour specified an indicative sentence of 6 years' imprisonment for the [NAME_10] offence, 2 years and 6 months' imprisonment for the [NAME_12] offence and 3 years and 6 months' imprisonment for the arson offence.

Judge Harris' Sentencing of the Applicant for the [NAME_10]

1. In her sentencing judgment, Judge Harris summarised the effect of an agreed statement of facts concerning the applicant and the [NAME_10] offence. An agreed statement of facts was also provided to Judge Buscombe in relation to [NAME_8]'s commission of the [NAME_10] offence. Shortly after the hearing of this application the parties filed a joint note identifying the differences between the two sets of agreed facts but recording their agreement that the differences were not material.

2. The effect of the agreed statement as summarised by Judge Harris was that at around 10pm on 14 November 2018 [NAME_10] was set upon in his home garage by five assailants including the applicant and [NAME_8]. He was pulled outside his garage and attempted to escape before one of the other three assailants struck him just above the knee with a machete causing "a significant gaping wound" and blood loss. [NAME_10] was then dragged to a sedan parked in the street and forced in by the applicant. He was placed in the rear seat in the middle. The other three offenders then drove [NAME_10] in the sedan. The applicant and [NAME_8] drove in the applicant's Range Rover in the same direction. [NAME_10] was forced to put his head between his knees and was driven for about 15 minutes to a secluded rural area and abandoned. At around 11pm passers‑by heard his cry for help and he was ultimately conveyed by ambulance to a hospital. 3. [NAME_10] was hospitalised for six days. He underwent surgery to reattach muscles and tendons. After his release, he underwent physiotherapy to regain muscle strength and mobility. However, he was left with a "large permanent and possibly disfiguring scar", muscle atrophy, possible permanent restriction on knee flexion, sensory loss and he may develop neuroma.

4. The applicant was stopped in his vehicle on the night of the kidnapping and arrested. He was released pending a DNA assessment of his clothing which later revealed the presence of [NAME_10]'s DNA. He was arrested on 12 March 2019 and has been in custody since.

5. The applicant gave evidence at the sentence hearing before [NAME_9] stating that he participated in the kidnapping to extinguish a drug debt of $1,000. He also said he was only instructed to hit or slap the victim, that he was unaware of the presence of his co-offenders until he was on [NAME_10]'s property and he told the offender who wielded the machete that, inter alia, "[t]his was not meant to happen." [NAME_9] rejected that evidence. [NAME_9] was satisfied beyond reasonable doubt that the applicant and the co-offenders "were at all times acting in concert and upon an agreement that the victim was to be kidnapped." However, [NAME_9] was not satisfied beyond reasonable doubt that the offender had prior knowledge that a machete was to be brought to the scene. 6. [NAME_9] did not accept that the applicant's moral culpability was reduced on account of any duress. [NAME_9] considered the circumstances of the kidnapping and found that it fell into the "middle range of objective seriousness" for offences of this kind. 7. [NAME_9] allowed a discount of 25% on account of the applicant's plea of guilty. The applicant was 21 years of age at the time of sentencing. His criminal record was described by [NAME_9] as "limited to Children's Court matters for which he received either a bond or caution" and, as an adult, driving offences and an offence of possession of a prohibited drug. [NAME_9] allowed the applicant "a degree of leniency for the absence of any significant criminal history." However, the applicant was subject to a Conditional Release Order, which was imposed on 25 October 2018 for the offence of possess prohibited drug. Thus, [NAME_9] found that the aggravating factor in s 21A(2)(j) of the Sentencing Act was established; ie the [NAME_10] offence was committed while the applicant was on conditional liberty.

8. In relation to his subjective case, [NAME_9] noted that the applicant's early development was unremarkable. He left school in Year 10 and had commenced a scaffolding business about four months prior to his arrest. A consultant psychiatrist's report noted that he had some history of attention deficit hyperactivity disorder and oppositional defiant disorder but concluded that the "likely diagnosis was borderline personality disorder." [NAME_9] found that the applicant was genuinely remorseful and that he had "at least very recently, demonstrated that he is capable of reliability and responsibility" although his "rehabilitation will ultimately come down to his own determination to succeed". As reflected in the sentence that was imposed, [NAME_9] found special circumstances based upon the need for the applicant to "undergo long-term supervision and treatment … to address not only his drug use but to monitor and manage his behavioural disorder".

Judge Buscombe's Sentencing of the Applicant for the [NAME_12]

1. Judge Buscombe was provided with an agreed statement of facts for the [NAME_12] offence relating to the applicant. The note filed by the parties after the hearing also described the differences between that statement and the agreed statement filed in relation to [NAME_8]'s commission of the [NAME_12] offence. There were differences between the two sets of facts which are potentially material. They are noted below.

2. The effect of the agreed facts concerning the applicant and the [NAME_12] offence was summarised by Judge Buscombe as follows. On 23 April 2018 [NAME_12] was approached by her friend and neighbour , [NAME_13], and one of his friends who were trying to contact her uncle, [NAME_12]. She made some inquiries but advised [NAME_13] that her uncle was not interested in meeting him. It seems that [NAME_13] had been approached by associates of the applicant who were seeking to contact [NAME_12]'s uncle. On 26 April 2018 the applicant contacted [NAME_13] and went to his house. Four days later, on 30 April 2018 the applicant, [NAME_8] and two co-offenders travelled to [NAME_13]'s house. The applicant spoke to [NAME_13] before they both walked to the victim's grandmother's place nearby. [NAME_12] was inside and came out to see [NAME_13] and was introduced to the applicant. The applicant said, "I'm a friend of [[NAME_13]'s], just tell us where the money is and we'll give you a big cut of it." [NAME_12] denied knowing where any money was but said that even if she did know she would not tell them.

3. The applicant and [NAME_12] continued to talk before she turned around and started walking towards the house. The applicant grabbed her arms, covered her mouth and pulled her towards a utility motor vehicle. [NAME_13] and [NAME_8] assisted the applicant in forcing a struggling [NAME_12] into the back of the vehicle. Eventually she was forced into the middle seat in the rear of the vehicle with the applicant and [NAME_8] on either side of her. [NAME_8] pushed her head down as they drove. [NAME_14] kept asking her "[w]here's [NAME_12]'s money". They drove for around 20 to 25 minutes before pulling off the highway onto a dark driveway. When the vehicle stopped, the victim was pushed out. [NAME_14] told her that they believed she did not know where her uncle's money was but asked her to show them where he lived. She told [NAME_14] she did not know where her uncle lived. They got back into the vehicle and drove back towards [NAME_12]'s grandmother's house. They stopped close to the victim's home before dropping her off and driving away. His Honour noted that the victim was crying and terrified. His Honour assessed the offence as being "below the mid-range of objective seriousness, but clearly not at the bottom of the range."

4. His Honour described the personal circumstances and subjective case of the applicant in terms that are not relevantly different to Judge Harris' description when sentencing the applicant for the [NAME_10] offence, although two matters should be noted. First, in light of the applicant's commission of the [NAME_10] offence, his Honour found that the commission of the [NAME_12] offence could not be seen as an "uncharacteristic aberration" and his criminal record "disentitles him to significant leniency". Second, his Honour addressed whether the psychiatric diagnoses noted above were causative of the [NAME_12] offence and concluded that it was "appropriate to reduce the need to fully reflect general deterrence in his sentence given his mental health", although that objective of sentencing still needed to be reflected in the sentence.

5. His Honour allowed a 25% discount on account of his plea of guilty. His Honour found that the applicant's remorse is "somewhat limited" and that "[o]n balance and, in particular, given his relative youth … he has reasonable prospects or rehabilitation". His Honour concluded that some cumulation on the sentence imposed by Judge Harris was appropriate and addressed parity in relation to two co-offenders who had already been sentenced, neither of which were [NAME_8].

[NAME_8]'s Sentencing Judgment 1. Judge Buscombe delivered [NAME_8]'s sentencing judgment after sentencing the applicant for the [NAME_12] offence. His Honour described the facts of the [NAME_12] offence and the [NAME_10] offence in terms that are not materially different to that set out above. That said, as noted there were some differences between the agreed facts for the respective offences. In relation to the [NAME_12] offence, the parties disputed whether the differences were material. The agreed facts concerning [NAME_8] attribute to the applicant the words "[w]hat if we kidnap you" and to [NAME_12] the words "[e]ven if I did know where such money was, I wouldn't tell you anyway."

2. His Honour assessed each of the [NAME_10] offence and the [NAME_12] offence as having the same objective seriousness to that set out above, i.e., the [NAME_12] offence was "below the mid-range of objective seriousness, but clearly not at the bottom of the range" and the [NAME_10] offence fell within the mid-range of objective seriousness.

3. The arson offence was committed in the early hours of 25 February 2018 and involved [NAME_8] and an unknown offender setting fire to a car parked under a carport attached to a house. They returned in the early hours of 26 February 2018 and ignited a fire at a "granny flat" attached to the house. Judge Buscombe assessed this offence to be "well within the mid-range of objective seriousness".

4. His Honour then addressed [NAME_8]'s subjective case. His Honour noted that, at the time of sentencing, [NAME_8] was 22 years of age and this engaged the principles applicable to sentencing young adult offenders. His Honour noted that in May 2018, when [NAME_8] was 18 years of age, he was sentenced to an Intensive Correction Order ("ICO") for two offences of robbery in company. The arson offence and the [NAME_12] offence were committed while [NAME_8] was on bail for the robbery offences and the [NAME_10] offence was committed while he was serving the ICO. His Honour found that the "fact that all three serious offences were committed while on conditional liberty of some form is an aggravating factor on sentence."

5. His Honour found that [NAME_8] had a proper and appropriate upbringing. He left school in Year 11 and began work as a labourer but prior to being placed in custody he was unemployed. His Honour accepted that the offences were committed to fund a drug habit. His Honour noted that [NAME_8] had written a letter of remorse but made no express finding as to whether he was remorseful. His Honour found that "his prospects of rehabilitation are guarded" although his Honour made a finding of special circumstances to facilitate [NAME_8]'s drug habit being addressed upon his release.

6. His Honour then addressed parity between the applicant and all the co-offenders in some detail. In relation to the [NAME_12] offence, his Honour found that [NAME_8]'s role was greater than the other co-offenders "but not as great as [NAME_1]'s". His Honour noted that [NAME_8] did not have a "mental health issue" unlike the co-offenders, including the applicant. His Honour concluded that the sentence that should be imposed "will be less than that which I imposed on [NAME_1]" but more than that imposed on one of the other co-offenders. So far as the [NAME_10] offence is concerned, his Honour stated: "In relation to the detention offence concerning [NAME_10], the co-offender [NAME_1] was sentenced by Judge Harris on 12 March 2020. [NAME_9], like me, considered the offence to be one within the mid-range of objective seriousness. [NAME_9] noted that [NAME_1] was only 20 years of age at the time and had certain mental health issues. [NAME_9] considered that [NAME_1] had some prospects of rehabilitation. [NAME_9] allowed [NAME_1] a 25% discount of his sentence for the plea of guilty. [NAME_9] imposed a sentence of six years imprisonment with a non-parole period of four years. [NAME_1] and this offender's subjective cases are somewhat similar, although this offender was on conditional liberty at the time of the offence and does not have the mental health issues that [NAME_1] has. I am unable on the facts before me to really differentiate between their roles in this particular offence. I consider in these circumstances it is appropriate to impose a sentence on this offender for this offence which is similar to that imposed by Judge Harris on [NAME_1]."

The Appeal: Parity 1. As noted, the sole ground of appeal is that the applicant has a justifiable sense of grievance as a result of the aggregate sentence imposed on [NAME_8] by Judge Buscombe on 29 January 2019.

2. This ground of appeal invokes the parity principle. The parity principle holds that there should not be a disparity, or a "marked disparity", between the sentences imposed on co-offenders such as to give rise to "a justifiable sense of grievance" in one of them (Lowe v The Queen (1984) 154 CLR 606 at 610 per Gibbs CJ, with whom Wilson J agreed at 616, at 612 to 613 per Mason J, and at 623 per Dawson J; [1984] HCA 46).

3. In DS v R [2014] NSWCCA 267 ("DS") at [39] the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted as follows: "The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be 'gross', 'marked' or 'glaring'."

1. Counsel for the applicant relied on the statement of Leeming JA in Miles v R [2017] NSWCCA 266 at [9] in which his Honour endorsed the analysis of Hamill J in Cameron v R [2017] NSWCCA 229 at [79]-[90] to the effect that it is wrong to require that the disparity be "gross, marked or glaring". It is not necessary in this case to resolve that debate. It suffices to note that, on any view of the authorities, merely pointing to some difference between the two subjective cases of co-offenders who committed the same crime and received the same sentence would not of itself establish a justifiable sense of grievance. Ultimately, this area of discourse is directed to determining whether or not the sentencing discretion miscarried and not whether or not this Court would have imposed a different sentence to that imposed at first instance.

2. In addressing a parity ground in circumstances such as these, it is important to note that this is not an appeal from the sentence imposed on the co-offender or a means to attack the reasons and findings in support of that sentence. Thus, in Martellotta v R [2021] NSWCCA 168 Adamson J observed (at [58]): "… where the co-offenders were sentenced by different judges, a further question arises as to whether the two sentences can be explained by reference to the different material before each sentencing judge. In order to answer that question, it is necessary to address the material before each judge and the assessment by each of that material as reflected in their respective reasons."

1. In the context of this case, the application of this passage means that care needs to be taken in considering the above passage from the judgment of Judge Buscombe in sentencing [NAME_8] which distinguishes between the mental health issues affecting the applicant and the absence of any such issues affecting [NAME_8]. As noted, Judge Harris received a psychiatrist's report and, in determining to make a finding of special circumstances, accepted that the applicant had a behavioural disorder. However, before Judge Harris, his counsel expressly disclaimed any reliance on that report as a basis to invoke the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ("[NAME_15]") concerning the circumstances in which general deterrence is ameliorated for offenders with mental illness. In contrast, in sentencing the applicant for the [NAME_12] offence Judge Buscombe found that general deterrence was diminished by his mental health issues.

2. The applicant's written submissions traversed the various differences between the findings in each case, although at times they elided the differences between the findings made by Judge Harris and Judge Buscombe about the applicant when sentencing him for the [NAME_10] offence and the [NAME_12] offence, whereas the comparison must be between each of those sets of findings and the findings concerning [NAME_8] for the same offence. However, in oral submissions the applicant's counsel focussed on the correct comparators. In relation to the [NAME_10] offence, counsel identified the findings of Judge Harris about the applicant's (i) remorse; (ii) prospects of rehabilitation; (iii) his criminal record; and (iv) his mental health and compared them to Judge Buscombe's findings about [NAME_8] on the same topic. With the [NAME_12] offence, counsel identified the findings by Judge Buscombe in the applicant's and [NAME_8]'s cases on the same topics as well as the fact that [NAME_8] committed the offence while on conditional liberty.

3. In relation to the [NAME_10] offence, no finding of remorse was made in [NAME_8]'s case, whereas Judge Harris found that the applicant was genuinely remorseful. Judge Harris' finding as to the applicant's prospects of rehabilitation was marginally better compared to the finding made by Judge Buscombe in relation to [NAME_8]. Judge Harris found that the applicant "at least very recently, demonstrated that he is capable of reliability and responsibility" although that was limited because it depended on "his own determination to succeed". Judge Buscombe found that [NAME_8]'s prospects of rehabilitation were "guarded". [NAME_8]'s criminal record was also (marginally) worse than the applicant's record. Judge Harris accepted that the applicant had a "behavioural disorder" but given the disclaimer of reliance on [NAME_15] that was treated as only relevant to a finding of special circumstances. That is irrelevant to this ground of appeal which concerns a comparison between the total sentence imposed on the applicant for the [NAME_10] offence and the indicative sentence for [NAME_8].

4. The relevant sentences for both the applicant and [NAME_8] were the same, namely 6 years' imprisonment. The findings of objective seriousness were the same and, as just noted, there was no finding that the applicant's mental health issues warranted any amelioration of general deterrence. Both the applicant and [NAME_8] committed the [NAME_10] offence while on conditional liberty. They were both approximately the same age and the principles applicable to sentencing young adult offenders were equally applicable to both.

5. In the end result the difference between the two cases in relation to the [NAME_10] offence reduces to the marginally more favourable findings made in favour of the applicant concerning remorse and prospects of rehabilitation as well as the marginally better criminal record possessed by the applicant compared to [NAME_8]. However, in this case it was the seriousness of the offending that predominated in the sentencing exercise. Given the seriousness of the offending involved in the [NAME_10] offence, I do not consider that a justifiable sense of grievance arises from the imposition of the same sentence on each of the applicant and [NAME_8] for the [NAME_10] offence.

6. With the [NAME_12] offence, the sentence imposed on the applicant exceeded that imposed on [NAME_8] by four months. The applicant's written submissions conceded that the sentence imposed on [NAME_8] was only "marginally less severe" than the sentence imposed on the applicant. Judge Buscombe differentiated between the applicant's and [NAME_8]'s roles in the [NAME_12] offence, finding that [NAME_8]'s role was not as great as that of the applicant. Against this was Judge Buscombe's finding that, in the applicant's case, general deterrence was diminished on account of his mental health issues and the other differences noted by the applicants' counsel. The applicant's written submissions contended that the "differences in the roles played by participants in a joint criminal enterprise can only go so far on sentence" and "there was no difference in their roles that could properly justify any difference in penalty". I disagree. A difference in the roles played in a kidnapping is exactly the type of difference that could justify a difference in penalty. It has more cogency than, say, marginal differences between findings of remorse and prospects of rehabilitation. In this case, those differences justified an even greater difference in the term of imprisonment but that was offset by the differences between the findings Judge Buscombe made in relation to each of the applicant's and [NAME_8]'s cases in relation to their respective mental health issues and the other matters relied on.

7. I do not consider that a justifiable sense of grievance arises from the imposition of marginally different sentences for the [NAME_12] offences.

8. For the sake of completeness, I note that there was no substantive difference in the application of the totality principle in each of the applicant's and [NAME_8]'s cases (Kelly v R [2017] NSWCCA 256). The net effect of the sentence imposed on the applicant for the [NAME_12] offence was to only increase his non-parole period by six months. In the circumstances that was relatively lenient.

Extension of Time 1. The applications for leave to appeal against both sentences were filed on 9 June 2022. The applicant needed an extension of time to appeal from the sentence imposed by Judge Harris. The applicant swore an affidavit in July 2021 explaining the difficulties he had with his legal representatives in the first half of 2021. Although there was no explanation for his inaction after that point, the application for an extension of time was not opposed by the Crown. I would grant the extension.

Proposed Orders 1. I propose the following orders: (1) The applicant be granted an extension of time to apply for leave to appeal against the sentence imposed on him by Harris DCJ on 12 March 2020 up to and including 9 June 2022; (2) The applicant be granted leave to appeal against the sentence imposed on him by Harris DCJ on 12 March 2020 and the sentence imposed on him by Buscombe DCJ on 29 January 2021; and (3) The appeals in both matters be dismissed.

1. PRICE J: I agree with Beech-Jones CJ at CL.

2. YEHIA J: I agree with Beech-Jones CJ at CL.

**********

Amendments 05 October 2022 - [36] - minor typographical error corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 October 2022