CMB v Attorney General for New South Wales

[2014] HCATrans 206

[2014] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S98 of 2014

B e t w e e n -

CMB

Applicant

and

ATTORNEY GENERAL FOR NEW SOUTH WALES

Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2014, AT 11.16 AM

Copyright in the High Court of Australia

MS C.T. LOUKAS, SC:    May it please the Court, I appear with my learned friends, MS G.A. BASHIR and MR B.C. DEAN, for the applicant.  (instructed by Legal Aid (NSW))

MR J.V. AGIUS, SC:   May it please the Court, I appear with MS B.K. BAKER for the respondent, the Attorney‑General for the State of New South Wales.  (instructed by Crown Solicitor (NSW))

FRENCH CJ:   Yes, Ms Loukas.

MS LOUKAS:   Your Honours, there is an application for an extension of time in this matter.

FRENCH CJ:   Is that opposed, Mr Agius?  Yes, the extension is granted.

MS LOUKAS:   In our submissions the three special leave questions that are set out at application book 87 are questions of general importance to the administration of justice.  It is convenient, your Honours, to go directly to special leave question 1, which concerns section 5D of the Criminal Appeal Act.  The special leave question is does the onus lie upon the respondent to an appeal by the Attorney‑General to establish that the discretion ought to be exercised in their favour?  Now, going directly to the judgment of the Court of Criminal Appeal ‑ ‑ ‑

FRENCH CJ:   What is meant by “onus” in the context of discretion?

MS LOUKAS:   Your Honours, that in itself is a very interesting question – the question of onus and the question of discretion.  What was implied in this case was not a discretion; it was an onus.  The Court of Criminal Appeal was very clear that it was applying an onus.  In particular, if we go to paragraph 110 of the judgment ‑ ‑ ‑

GAGELER J:   I suppose it might be different to ask why should we?  That is different from asking why should we not.

MS LOUKAS:   I am sorry, your Honour?

GAGELER J:   Why should we is a different question from why should we not.  That might be all it comes down to.

MS LOUKAS:   That may be, your Honour, but I think in this case the Court of Criminal Appeal has applied three principles in error and led to an individual injustice.  On that point about discretion or onus on the respondent or onus on the Crown, what we now have in the Court of Criminal Appeal is the Court of Criminal Appeal in differently constituted benches, speaking with different voices about whether we are dealing with an onus on the respondent, whether we are dealing with an onus upon the Crown or whether we are dealing with pure discretion.

That is a matter that can only be clarified by this Court and it calls out for special leave, we say, because of that very reason – the first question that has fallen from the Bench about the nature of what is being dealt with here.  Whether it is an onus or whether it is a discretion is critical in relation to that and particularly if one looks at longstanding High Court authority in this regard – that, is Malvaso at pages 234 to 235, where it is stated that the onus is on the Attorney‑General.  So if the onus is not on the Attorney‑General and if we are dealing with pure discretion, that is a point that this Court is going to have to clarify.  Is this no longer the case?  That is the question.

Your Honours, going directly to paragraph 110 of the judgment – does the onus lie upon the respondent to an appeal by the Attorney‑General – the Court of Criminal Appeal in this case, as I have indicated, at 110 stated:

We take the law to be that “the onus lies upon the respondent to establish that that discretion ought to be exercised in his or her favour” –

That is an unambiguous statement.  There is an unambiguous statement that is a clear error and it is an error of real consequence, we say, for the administration of the criminal law in this State.  It is an error that requires correction by this Court.  In particular – what I have adverted to earlier – there is now a clear conflict of authority in the Court of Criminal Appeal.  Hernando, followed by Nguyen, followed by Assaad, and then we have the earlier decision of Smith, followed by CMB.  As a point of parenthesis there, the case of Hernando was in 2002, the case of Smith was in 2007, and the court did not have the benefit of the decision of Hernando.  That was not brought to the court’s attention in Smith.

So, your Honours, the approach that has been adopted there clearly cannot stand and it requires this Court to deal with that diversity of opinion, we say.  Now, the Attorney concedes that the language of onus in the Court of Criminal Appeal judgment was misplaced, and that is at application book 101, at paragraph 20.  The Attorney attempts to explain away this clear error and we say casting an onus on a respondent to a Crown appeal is not merely misplaced language, as the Attorney would have it.  It is an error of principle.

The reason that comes through clearly and unambiguously through the judgment is this.  We go to application book 65 in the judgment where the court is reciting the submissions of the respondent at first instance, our submissions, and that is the respondent going, at paragraph 81, at application book 65:

Finally, in R v Hernando . . . Heydon JA (as he then was), with whom Levine J and Carruthers AJ agreed, indicated that the Crown must surmount two hurdles if the Court is to impose a more severe sentence.  The first is identification of an appealable error.  The second is negativing any reason why the residual discretion of this Court not to interfere should be exercised.  The Court in R v Smith . . . took the opposite approach in relation to onus.

So it is clear it is unambiguous that the court knew exactly what it was talking about when it talked about onus because it is a reflection back to paragraph 81, so it cannot merely be misplaced language, as the Attorney would contend.  It further goes on to state in that paragraph:

Hernando, however, has been considered, applied and cited with approval in a number of cases:  see for example R V Tam Van Nguyen . . . Fadde Assaad . . . The respondent contended that the Attorney General bears the onus of negativing any basis for the exercise of the residual discretion.

So it is clear, it is unambiguous, in 81 that what the court is dealing with when they come to consider this question at 110 is not discretion but onus.  Your Honours, the problem with casting an onus on the respondent is that it represents a clear departure from the limiting purpose of Crown appeals that this Court has insisted upon through the vast swathe of cases in this Court on Crown appeals from Griffiths through Malvaso ‑ ‑ ‑

FRENCH CJ:   The legislative framework has changed a bit, though, has it not, in respect of double jeopardy?

MS LOUKAS:   Indeed, and that is conceded.  But that is a point that this Court dealt with in Green, that the exceptional nature of the Crown appeal still remains.  In fact, at paragraph 24 of Green the majority emphasised the exceptional nature of Crown appeals and the fact that this exceptional nature informs the exercise of the Court’s residual discretion.  This Court stated:

Section 5D was enacted in its original form in 1924.  Crown appeals under s 5D and like provisions in other States and Territories have long been regarded by this Court as exceptional.

Now, despite the introduction of the legislation, section 68A, which is directed to the anxiety and distress aspect of double jeopardy that is dealt with in JW, the presumed anxiety and distress, this Court in Green made it very clear that the residual discretion has a major role to play, even with the excision of section 68A.  That point was made again by this Court in Bugmy that the exercise of the residual discretion must be considered in every Crown appeal; it is material.  So to place the onus on the respondent runs contrary, we say, to the exceptional nature of Crown appeals and the limiting nature of Crown appeals.

FRENCH CJ:   So that is the point which is really covered by ground 2, I suppose, at page 85 of your amended draft notice of appeal, and there is a distinct point in ground 4.  Is that right?

MS LOUKAS:   Your Honours, yes.  It is true that question 2 and question 1 are in fact related in that way.

FRENCH CJ:   I am looking at the draft notice – just so we get our numeration right – at page 85 of the application book.

MS LOUKAS:   Yes.  Your Honours, going to question 2, before I go to question 3, the question there is:

On an appeal by the Attorney General against sentence, does the Attorney General need to establish ‘exceptional circumstances’ in order to successfully put contentions that were not put before the sentencing judge –

The critical aspect of this special leave question is what is the correct principle to be applied on appeal when dealing with a change in the position of the Crown?  If I could take your Honours again directly to the Court of Criminal Appeal judgment, and that is ‑ ‑ ‑

FRENCH CJ:   I am sorry, if I can just bring you back to the amended draft notice?  Which ground in the amended draft notice of appeal are you now addressing?

GAGELER J:   I think you may have melded your first two special leave questions into one ground of appeal.

MS LOUKAS:   I think in essence I have melded question 1 and question 2 because they are, as I have indicated, related in that sense.  There are additional points to be made in relation to question 2, but it is quite clear that questions of the exceptional nature of Crown appeals, the question of change of position in relation to the Attorney General and the onus, are in fact related questions and it goes to ground 2 and 5.

I note the time, your Honours; perhaps I should go straight to question 3.  Before leaving question 2, I should make this point, and that is, at its purest essence the Executive created the issue that was before the Court of Criminal Appeal by allowing the regulation to lapse while offenders were still lawfully on the program.  The Attorney General brought an appeal, the Crown having changed its position on the sentence, from the Director of Public Prosecutions at first instance, and the Court of Criminal Appeal, in paragraph 107 of the judgment, does not apply the principles relevant to change of position on the part of the Crown but merely refers to the Crown at first instance, not the change of position on the part of the Attorney.

I will leave question 2, your Honours, and I note the time, to go to question 3.  It is now convenient to go to question 3:

Does s23 . . . qualify the principle in R v Ellis . . . How are the words “must not be unreasonably disproportionate to the nature and circumstances of the offence” in s23(3) to be applied?

Going directly to the judgment, again at paragraph 53, the court there is reciting the submissions of the appellant and acknowledges that the appellant dealt with section 23 in their submissions and Ellis in relation to voluntary disclosure.  The Court of Criminal Appeal, in their judgment at paragraph 93 – and this is at application book 71 – mentions those principles but then goes on to undermine the factual circumstances in the case at the end of paragraph 93 and deal with them not on the facts as found.

The other curious aspect of the judgment is paragraph 89 at application book 69, where the issue of manifest inadequacy is dealt with in a way that appears – this is paragraph 89:

That is so in our opinion even after the subjective and procedural considerations are taken into account.

So via paragraph 89 the court appears to be making its decision about manifest inadequacy by taking into account resentencing matters.  So there is a confusion of principles there in relation to the structure of the judgment.  In particular, it has to be made clear that paragraph 89 – “These are considered and evaluated below” – appears to confuse the House decision with the residual discretion issue and with the resentence issue at the end of paragraph 89.

GAGELER J:   It is section 23, is it not?

MS LOUKAS:   Yes, indeed.

GAGELER J:   What is the actual error?

MS LOUKAS:   This is the error, your Honours.  If we go to paragraph 99 of the judgment, this is the error.  The court has referred to the principles but they have not applied them and they have not applied them in these circumstances.  Paragraph 99, application book 74:

The nature of the offences under consideration commands the imposition of sentences that recognise and give effect to the requirements of punishment, denunciation and retribution, as well as specific and general deterrence.  The importance and relevance of these factors are not in our view offset in this case by the respondent’s particularly awkward current uncertain status or the subjective considerations outlined in his affidavit and elsewhere.

So that is an application supposedly of section 23 and Ellis, but the problem with that is that it is nowhere near - whatever “not unreasonably disproportionate” means under section 23, it does not mean that.  Then I take your Honours directly to (c) ‑ ‑ ‑

FRENCH CJ:   Was it not open to the court to find that a non‑custodial disposition in the circumstances was unreasonably disproportionate?

MS LOUKAS:   In the circumstances of this case, your Honour, the court has clearly applied the wrong principles, both in relation to the finding of manifest excess and in relation to residual discretion questions and, in particular, I take your Honours to ‑ ‑ ‑

FRENCH CJ:   I am not asking you about residual discretion.  I am just asking you about the observation that the nature of the penalty – if you like, the minimum penalty – that is appropriate for the kinds of offences that were committed in this case.

MS LOUKAS:   Under ordinary circumstances the answer to that question would be yes, but this was not ordinary circumstances, your Honour.  This case arose from a failure of the Executive and the invidious position that both the DPP and the judge at first instance were placed in.  The judge was forced to consider the lapse of the regulation and the Attorney General’s program that the respondent was in.  The judge had to consider the Ellis considerations, had to consider section 23, and it was a complicated nuance situation.  Sentencing ‑ ‑ ‑

FRENCH CJ:   I am just going to the application of the statutory formula:  “not unreasonably disproportionate to the nature and circumstances of the offence”.  Whatever that means, it does not bring in considerations relating to the discretion, does it?  It may inform the discretion but the discretion does not, as it were, qualify those terms and that requirement.

MS LOUKAS:   Your Honour, that is true, but going directly to what principle the Court of Criminal Appeal applied there ‑ ‑ ‑

FRENCH CJ:   The circumstances of the disclosure do not themselves inform the circumstances of what is unreasonably disproportionate to the nature and circumstances of the offence.

MS LOUKAS:   It does, your Honour, because it is a voluntary disclosure in those circumstances.

FRENCH CJ:   Yes, but there is a minimum threshold:  it “must not be unreasonably disproportionate to the nature and circumstances of the offence.”

MS LOUKAS:   Indeed, but the problem with what the Court of Criminal Appeal did was they did not apply “not unreasonably disproportionate”; they applied proportionate.  That is clear from what they have to say, your Honours, in paragraph 99.  If one looks at the Court of Criminal Appeal authority of C – and that is at application book 94 – the provision does not proscribe sentences which were disproportionate.  You can have a disproportionate sentence.  It proscribed only those which were unreasonably disproportionate.

FRENCH CJ:   I understand the distinction was made.

MS LOUKAS:   Indeed, and it goes on, at application book 94, drawing from C, at paragraph 32:

It was clearly intended that, in determining what was ‘unreasonable’ for this purpose, the Court should be able to take into account the assistance given to law enforcement authorities –

which there was in this case –

and, taking that into account, to reduce a sentence below what otherwise would be required by the nature and circumstances of the offence –

Below the nature and circumstances.  What the Court of Criminal Appeal has applied is not the test “not unreasonably disproportionate”; what they have applied is proportionate.  That is clearly not the relevant test.

FRENCH CJ:   Thank you, Ms Loukas.  Yes, Mr Agius.

MR AGIUS:   Your Honours, in our submission, special leave should not be granted because, firstly, the application does not raise any important question of principle.  This case was not decided on the question of onus.  Indeed, the reference to “onus”, properly understood in the context of the judgment, was obiter.  Secondly, the decision which is sought to be appealed from is a discretionary decision and it is not attended by material error.  Thirdly, the appeal has insufficient prospects of success.

Essentially, my learned friend has argued two points.  The first was that the appeal below was decided against the applicant on the basis of onus and the second was that there was a misapplication of section 23 of the Crimes (Sentencing Procedure) Act.  As to onus, it is our submission that it is clear beyond any doubt, despite the sentence in the judgment concerning onus that my learned friend has taken the Court to, in relation to residual discretion, that the court fully considered on its merits the material that had been relied upon by the applicant seeking a favourable exercise of the residual discretion and then determined that, so grave was the error and its consequences, that there was no option but to intervene.

The examples of this can be found in the judgment.  Indeed, a good part of the judgment was given over to consideration of the residual discretion and its components in this matter.  I will not take up a lot of time reading the passages, but at application book 57, paragraphs 57 to 63, the court discusses the nature of the residual discretion not just as a matter of principle but the considerations on the evidence that emerged in this particular case. 

At application book 69, at paragraph 89, again the court referred to the question of whether or not the residual discretion not to intervene should be exercised.  That, in our respectful submission, is a textbook statement of the principle.  At application book 71, paragraphs 93 to 97, there is a detailed consideration of the material that was put forward in the applicant’s affidavit concerning the question of the residual discretion and the matters that might bear upon the residual discretion.

At application book 76, paragraphs 103 and following, there is further discussion of the factual circumstances that relate to the exercise of the residual discretion.  Beyond that it was absolutely plain that the Attorney General had conceded in the appeal before the Court of Criminal Appeal that there were matters relevant to the exercise of the residual discretion.  That was noted by the court at application book 57, line 50. 

The two matters that the Attorney General had identified were the passage of time that had elapsed before the appeal process had begun, which is set out at application book 58, paragraphs 60 and 61, and secondly, the contribution by the Crown to the error made by the sentencing judge, which is set out at application book 58, paragraphs 62 and 63.

GAGELER J:   Mr Agius, at paragraph 110, in the passage to which we were taken, it is a pretty strong statement by the court:  “We take the law to be”.  Do you say that is not the law, or it is the law?

MR AGIUS:   We say that the authority relied upon by the Court of Criminal Appeal was an authority where there were no facts and circumstances giving rise to the exercise of the residual discretion.  That is the case of Smith.  There was a statement in Smith by Justice Simpson that the onus was on the appellant, but that statement was made in circumstances where it had no work to do because in fact there was no material, and it was on the basis that there was no material that the court declined to exercise the residual discretion.  When one takes that into account and one looks at what actually happened in this appeal, there was no reason for the Court of Criminal Appeal to say anything about onus.

FRENCH CJ:   What do you think the Court of Criminal Appeal understood by the notion of a discretion and what it involved when you have regard to the two sentences at the top of page 79 in paragraph 110:

The identified matters –

that is, the matters put by the respondent, the applicant in this case –

do not satisfy us, however, that his Honour’s sentencing discretion did not wholly miscarry in a way that mandates correction in this Court.  It is correspondingly wholly inappropriate in this case to exercise the available discretion not to intervene.

Does that mean that the residual discretion not to intervene is displaced, as it were, by the words “mandates correction”?  It seems to be that there is an error, it is manifestly inadequate, it has to be corrected.  Therefore, we do not exercise the discretion not to intervene.

MR AGIUS:   We, with respect, do not read it that way.

FRENCH CJ:   Well, how else do you read it?

MR AGIUS:   We read it taking the whole of that paragraph, commencing at the bottom of page 78.  We read it this way:  that there was in effect an evidentiary onus on the respondent to raise the issue, or to point to material, which may lead us to exercise the discretion.  That has been done.  That material has been identified.  We have analysed it and we are not satisfied that the discretion should be exercised in this case.  One of the things that we take into account in coming to that conclusion is the nature of the error that was made and the gravity of the circumstance should this father be left with sentence deferred in circumstances where he has committed five very serious offences.  We do not contend that what the court ‑ ‑ ‑

FRENCH CJ:   It seems to boil down to this:  that the sentencing judge got it so wrong that there is no alternative but to intervene notwithstanding the impressive collection of factors put up by the respondent, as they say.

MR AGIUS:   That is right.  There is nothing wrong in law with that approach.  With respect to the Court of Criminal Appeal, we say it is unfortunate that they referred to the question of onus and that they referred to the decision of Smith, because Smith had nothing to do with onus.  It was in fact decided on an absence of evidence.

Since then, the Court of Criminal Appeal, in a decision of Loveridge, which we have put on our list of authorities and we provided the copy of the unreported decision, has in effect declined to deal with a similar matter on the issue of onus.  The Chief Justice and Justices Johnson and Hulme handed down judgment in May this year.  At paragraph 248 of the unreported judgment, page 23, they refer to the Crown’s reference in the case before them of the onus issue, and the Crown in Loveridge had referred to Smith, CMB and Gavel, and they refer to the submission that was made that it was for the Crown to negate any reason why the residual discretion ought not to be exercised.  They refer there to Hernando.  That is the point that my learned friend makes to this divergent authority.  But they determined to deal with the appeal without applying any application of the concept of onus.

We would submit, with the greatest of respect, that that is the appropriate response and that is the appropriate way in which these matters should be dealt with.  Smith and Gavel were both cases where there was no evidence at all beyond stress, or a claim of stress, that the respondent had suffered any particular disadvantage, and there was simply no need to refer to onus. 

In CMB there was a great deal of positive evidence going to the issue of whether the exercise of that discretion was engaged.  The court clearly looked at that material and assessed it.  If it was a question of onus there would have been no point in the court doing that.  But they have assessed it.  In areas where some of that material which related to onus overlapped with relevant sentencing matters, matters which were relevant for the sentencing exercise, the court took them into account.  The court took into account delay.  The court took into account the fact that the Crown below had not corrected the error, and various other matters which were identified in the judgment.

In relation to section 23 and the Ellis principle, in our respectful submission there is no error.  The approach of the Court of Criminal Appeal was unexceptional and it was consistent with earlier authority in Gallagher, which we have set out in our submissions at application book 104, line 10.  Whilst it is true that Court of Criminal Appeal did not specify the penalty that it would otherwise have imposed, that is an irrelevant matter because section 23(4) indicates that that does not invalidate the sentence.

In saying, as it did, that leniency extended as a result of the applicant’s assistance to authority should not lead to a sentence which was unreasonably disproportionate to the nature of the circumstances of the offences, the court was not committing any error of law.  That was consistent with the common law in Ellis.  The fact is that sometimes errors are made in sentencing proceedings and often those errors may be a relevant matter to be taken into account, but if the result is going to lead to a situation where a father who has sexually assaulted his daughter on four occasions is left with a sentence deferred on a behaviour bond, that clearly is a disproportionate result when one considers the circumstances of the offences.

We have dealt with what we contend is an error of logic in our learned friend’s submissions at our submissions, application book 105, paragraph 37.  It is our submission that my learned friend’s submissions conflate two concepts:  a concept of manifest inadequacy and proportionality.  With respect to my friend, she does this in relation to her examination of section 23 and the Ellis principle.

Correctly understood, an issue of manifest inadequacy, if such an issue is raised, the court must consider all the matters that are relevant to fixing sentence, including mitigating factors.  In contrast, proportionality, which is what section 23 is dealing with and what the previous common law authorities such as Gallagher dealt with, relates to the objective circumstances of the offence.  They are two different concepts and they ought not to be conflated. 

In our submission, all the court did in this case was to recognise earlier common law authority and apply section 23 and to hold that leniency extended as a result of assistance to authorities should not lead to a sentence which was unreasonably disproportionate to the nature and circumstances of the offences.  There is no error disclosed in that process of reasoning.  They are our submissions, your Honours.

FRENCH CJ:   Thank you, Mr Agius.  Yes, Ms Loukas.

MS LOUKAS:   Thank you, your Honours.  My learned friend refers to unfortunate language in relation to onus and says that Smith is not about onus.  But, your Honours, I direct you to paragraph 49 and paragraph 60 of Smith.  I have two copies of the decision.

FRENCH CJ:   What paragraph numbers?

MS LOUKAS:   That is paragraph 59 and paragraph 60 of Smith, your Honours.  Paragraph 59:

Alternatively, counsel argued, the Crown had not:

“ . . . displaced the operation of this Court’s residual discretion to dismiss the Crown appeal”.

Paragraph 60:

This latter submission contains within it a fallacy.  It is true that the Court retains a residual discretion to dismiss a Crown appeal which otherwise has merit; however, the onus lies upon the respondent to establish that the discretion ought to be exercised in his or her favour.

So Smith clearly uses the term “onus”.  My learned friend’s submission that Smith does not stand for the concept of onus is wrong, if that is how his submission is to be understood.  Your Honour, in those circumstances we go back to what we had to say right at the beginning about onus.  The situation in the Court of Criminal Appeal is currently we have three approaches to the question of onus on a Crown appeal.

GAGELER J:   What do you say about Loveridge?

MS LOUKAS:   Your Honour, it is very important that I deal with this question of Loveridge because it is this:  when dealing with Loveridge, in fact, our special leave application was filed in April.  Loveridge was argued on 7 May.  Mr Boulten of Senior Counsel submitted that CMB was incorrect and the onus was not on the respondent, but he also indicated that CMB was subject to an application for special leave in the High Court and he submitted that Hernando was the correct law.

Now, the Court of Criminal Appeal in Loveridge, in light of that, did not settle the dispute.  What the Court of Criminal Appeal in Loveridge did was say that this question will not be determined by onus.  So now we have differently constituted benches of the Court of Criminal Appeal speaking in different voices in Hernando, followed by Nguyen and Assaad, saying the onus is on the Crown.  Then we have Smith saying no, the onus is on the

respondent and then we have CMB and then we have Lee and Gavel following CMB and then we have Loveridge declining to take a view on either position.

So in those circumstances this Court, we say, must correct that significant error of principle.  It is an error of real consequence for the administration of justice and in this case, where the Court of Criminal Appeal referred to the impressive collection of factors but then applied the onus against the respondent.  In those circumstances, your Honour, that is not an error that can stand.  That is an error that we say must be corrected by this Court.

Now, the other factors that we need to take into account, your Honours, is this aspect of whether or not Ellis was taken into account on the question of manifest inadequacy.  Again, paragraph 89 – again, the curious structure of CMB – is at application book 69, paragraph 89:

Subject to consideration of whether or not the residual discretion not to intervene should be exercised in this case, we consider that the sentences imposed by his Honour were erroneously lenient and manifestly inadequate.

The paragraph that is directed to that is one paragraph – that is, paragraph 88 – at application book 67, and that does not mention Ellis.  It does not mention section 23(3).  It does not mention the peculiar circumstances of this case.  This question of Ellis was simply not dealt with in relation to manifest inadequacy.  Section 23(3) was not dealt with in relation to the question of manifest inadequacy and it was not referred to in paragraph 89.  So paragraph 89 either ignores Ellis and section 23(3) on the question of manifest inadequacy or it draws in the resentencing discretion.

FRENCH CJ:   Thank you, Ms Loukas.  The Court will adjourn briefly to consider what course it should take.

AT 11.56 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.59 AM:

FRENCH CJ:   There will be a grant of special leave in this matter on the grounds 2 and 4 set out in the amended draft notice of appeal, which appears at pages 85 and 86 of the application book.  This will be half a day to a day, Ms Loukas?

MS LOUKAS:   Yes, your Honour.

FRENCH CJ:   Mr Agius?

MR AGIUS:   Yes, your Honour.

AT 12.00 PM THE MATTER WAS CONCLUDED