Director of Public Prosecutions v Crisp
[2021] TASCCA 6
•24 May 2021
[2021] TASCCA 6
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | Director of Public Prosecutions v Crisp [2021] TASCCA 6 |
| PARTIES: | DIRECTOR OF PUBLIC PROSECUTIONS |
| v | |
| CRISP, Daniel James | |
| FILE NO: | CCA 264/2021 |
| DELIVERED ON: | 24 May 2021 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 23 April 2021 |
| JUDGMENT OF: | Blow CJ, Brett J and Geason J |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Committing an unlawful act intended to cause bodily harm – Victim stabbed six times with knife – Sentence of 12 months' home detention manifestly inadequate.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: J Shapiro Respondent: G Tucker
Solicitors:
Appellant: Director of Public Prosecutions Respondent: Grant Tucker
| Judgment Number: | [2021] TASCCA 6 |
| Number of paragraphs: | 46 |
Serial No 6/2021
File No CCA 264/2021
DIRECTOR OF PUBLIC PROSECUTIONS v DANIEL JAMES CRISP
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BLOW CJ BRETT J GEASON J 24 May 2021 |
| Orders of the Court (23 April 2021) |
1 Appeal allowed.
2 Home detention order made on 28 January 2021 varied by increasing operational period to 18 months from that date.
3 Community correction order for an operational period of 3 years commencing 23 April 2021 with a special condition requiring the respondent within that period to satisfactorily perform 240 hours' community service as directed by a probation officer or a supervisor.
Serial No 6/2021
File No CCA 264/2021
DIRECTOR OF PUBLIC PROSECUTIONS v DANIEL JAMES CRISP
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BLOW CJ 24 May 2021 |
1 On 28 January 2021 Marshall AJ sentenced the respondent, Daniel Crisp, to 12 months' home detention in relation to a charge of committing an unlawful act intended to cause bodily harm contrary to s 170(1) of the Criminal Code. The Director of Public Prosecutions appealed, contending that that sentence was manifestly inadequate. On 23 April 2021 this Court allowed the appeal and resentenced the respondent. I announced at that time that the Court was unanimous as to the outcome of the appeal but, in the light of the reasons published by Geason J today, the orders of the Court should be regarded as having been based on a majority decision. These are my reasons for joining in the orders that were made on 23 April.
2 In the early hours of Saturday, 16 March 2019 the respondent attacked a man who was visiting his home and stabbed him six times to the chest and abdomen, using a knife. He stood trial on two charges. The first was a charge of unlawfully assaulting the complainant "by grabbing hold of him and dragging him and by punching him to his head and body a number of times". He was acquitted on that charge. The second charge was the s 170(1) charge. It related to the stabbing. He was found guilty on that charge.
3 Section 170(1), omitting irrelevant words, provides as follows:
"Any person who, with intent ... to do any grievous bodily harm to any person ...
wounds ... any person by any means whatever ... is guilty of a crime.
Charge: Committing an unlawful act intended to cause bodily harm."
4 "Grievous bodily harm" is defined in s 1 of the Code to mean "any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause serious injury to health".
5 The respondent's defence to both charges was that his use of force against the complainant was lawful because he was defending his fiancée from a sexual attack. That defence was based on s 46 of the Code, which provides as follows:
"A person is justified in using, in the defence of himself or another person, such force
as, in the circumstances as he believes them to be, it is reasonable to use."
6 It is clear that, on the assault charge, the jury were not satisfied beyond reasonable doubt that the respondent acted unlawfully in grabbing, dragging and punching the complainant. The Crown failed to establish that that conduct amounted to anything other than the lawful defence of his fiancée. In relation to the s 170 charge, it is clear that the jury were satisfied beyond reasonable doubt that the respondent intended to cause grievous bodily harm to the complainant, and that stabbing the complainant did not amount to lawful defence of his fiancée.
7 On the night in question the respondent was living in a house in South Launceston with his fiancée. The respondent is a chef. He worked on the night in question. After he got home, the complainant visited his house and was drinking with him and his fiancée.
8 At the trial there were conflicting versions of the events that led up to the stabbing. The respondent was sentenced on the basis of his own version of events. The appellant does not contend that he should have been sentenced on any other basis.
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9 The respondent gave evidence at the trial. His version of events was to the following effect. He had gone to bed. He woke up and went into the lounge room. He saw that his fiancée had passed out on the couch. The complainant was standing, bending over her, touching her leg. He had his hand up her skirt. His pants were half down, between his waist and his knees. The respondent protected his fiancée by punching the complainant. He told him to get out of his house and swore at him. The complainant was reluctant to leave, and said that he meant no harm. The respondent went into the kitchen, opened a drawer, grabbed a paring knife, confronted the complainant in the lounge room, yelled at him, pushed him, punched him again, kept on pushing him, and then commenced stabbing him. He chased him down the road a little bit to make sure he was going.
10 At the hearing of the appeal, counsel for the appellant sought to rely on evidence given by the complainant to the effect that the stab wounds were inflicted after he had left the respondent's house and was trying to get away. However the complainant did not adhere to that evidence when he was cross-examined. At that stage he said that knife wounds were inflicted in the lounge room, in the hallway, and "out the front door and into the street". The cross-examiner then put to him that the wounds were inflicted in the hallway at the front door, not out in the street, to which the complainant responded, "Well he still stabbed me." When the respondent gave evidence, he said that he stabbed the complainant in the lounge room and the hallway, but not outside the house. He said that the complainant was not leaving when he stabbed him. He admitted that he said the opposite when interviewed by the police shortly after the incident, but maintained that what he told them was incorrect. The learned sentencing judge did not make any findings of fact as to where the two men were when the knife wounds were inflicted, nor as to whether the complainant was leaving at the time. If he had decided to make findings of fact as to those questions, the prosecution would have borne the onus of establishing aggravating circumstances beyond reasonable doubt: R v Olbrich [1999] HCA 54, 199 CLR 270. Since his Honour did not make findings of fact as to those questions, he was obliged to sentence on the basis of the respondent's version of events: Nash v Haas [1972] Tas SR 1. It was open to him to sentence the respondent without making findings as to such matters of detail.
11 One of the wounds punctured the complainant's left lung. The complainant was very intoxicated. He walked for more than a kilometre, reached the Launceston General Hospital, was unable to find a way in, and began to walk around the hospital. A security guard saw him on a CCTV screen at about 2.30am and went out to help him. He found him hunched up, with blood down his front. He helped him walk to the triage assist area, where staff collected him and placed him in a wheelchair. There was medical evidence at the trial that, without medical treatment, he could have died. The six wounds were closed using stitches. The puncture wound to the left lung was treated. The complainant was given intravenous opioids for pain relief. He was discharged from the hospital after four days.
12 The complainant provided a victim impact statement in which he made assertions to the
following effect:
He ran towards the hospital holding his wounds, not knowing if he was going to make it, or whether
he would ever see his family again. But for the security guard finding him, he would not have survived. He was unable to work for weeks. That resulted in financial difficulties. He had to sell an investment
property to make ends meet and pay debts. He lost income every time he attended a legal appointment or an appointment with a doctor or a
psychologist. He was left with physical scars which disturb him when he showers, goes swimming, looks at
himself in a mirror, or is questioned by his children about them. He has suffered psychological effects including nightmares, anxiety, and waking up at night. 3 No 6/2021
13 The learned sentencing judge attached little weight to the victim impact statement. In his sentencing comments he said this:
"The complainant's victim impact statement should be treated with caution. He appears to have embellished the effect of the incident upon him in that statement. He referred to losing income because of medical and psychologist appointments and to being traumatised by the event. There was no indication of any such trauma, other than the pain involved in the injuries, when he gave his evidence. The complainant does not appear to have suffered any ongoing physical or mental effects from the incident that independent evidence verifies as impeding his ability to function effectively. For these reasons, little weight has been given to the victim impact statement."
14 It is often appropriate to treat assertions in victim impact statements with circumspection: Attorney-General for Tasmania v B [2010] TASCCA 6, 20 Tas R 277, per Crawford CJ at [55]-[63]. The learned sentencing judge had seen and heard the complainant giving his evidence, and was therefore well placed to decide how much weight to give to his uncorroborated assertions. On any view of the complainant's assertions, it is clear that he had weeks off work, and that the respondent's crime must have had significant financial and psychological consequences. For the purposes of this appeal, there was no need for this Court to have precise information as to the extent of those consequences.
15 There were a number of aggravating features of the respondent's crime. He used a knife as a weapon. The attack with the knife was sustained, to the extent that the respondent stabbed the complainant six times. The complainant suffered severe and life threatening injuries. He feared for his life. He has been left with permanent scars. There is no reason to doubt that the knife attack had a significant psychological impact.
16 A number of common mitigating factors were absent in this case. The respondent did nothing to ensure that the complainant received medical treatment. He did not plead guilty to the charge on which he was found guilty. He was not a youthful offender, being 28 years old when he committed the crime.
17 However there were significant mitigating factors in this case. Those factors, and my comments in relation to them, are as follows:
The stabbing of the complainant was provoked by his conduct towards the respondent's fiancée. The attack with the knife was impulsive and spontaneous. The respondent acted before he had time to calm down and control himself. On the respondent's version of events, what he saw indicated that the complainant was about to commence sexual intercourse with his fiancée who was asleep and therefore not consenting. That is, he was apparently about to rape her. Defending her by punching the complainant was reasonable, but stabbing the complainant six times with a knife amounted to either retaliation, or defensive conduct that went too far. The learned sentencing judge did not make a finding as to whether the stabbings were retaliatory, defensive, or a combination of the two. He went no further than saying that "to take a knife and stab that person [the complainant] six times and cause serious injuries is to elevate one's response to a disproportionate level". For the purpose of this appeal, it was not necessary for findings to be made as to whether the respondent's conduct in stabbing the complainant was retaliatory, defensive, or a combination of the two. The respondent was a man of excellent character. He had no significant prior convictions. He had no history of alcohol abuse or drug use. He was in a stable domestic relationship with his partner of eight years and their 5 year old son. There was no history of family violence. He was in stable full- time work. His actions were entirely out of character. He was extremely remorseful. In a home detention assessment report, a probation officer wrote: "The accused stated during interview that he feels terrible and ashamed of what he did. When discussing what would happen if a similar situation arose in the future, the accused stated that it would not end in the same way, acknowledging that his behaviour
4 No 6/2021
was not okay, stating he fully understands the gravity of his offence. At no time during interview did the accused make comments alluding to him believing the victim deserved the attack, once again stating he understands the severity of the offence."
The probation officer opined that there was a very low risk of the respondent re-offending. Apart from his scars, the complainant made a full physical recovery from his injuries. At about the time when the respondent was committed for trial, his counsel advised the Crown that he would be willing to plead guilty to the s 170 charge if the assault charge was not proceeded with. That offer was rejected. An offer to plead guilty is a mitigating factor, but "a mere offer not matched by such a plea necessarily loses much of its weight": R v Zefi [2017] SASCFC 121, 129 SASR 161, at [45] (Kourakis CJ, Blue and Lovell JJ). 18 Comparisons have often been made as to the relative seriousness of the crimes of wounding or causing grievous bodily harm, both contrary to s 172 of the Code, and crimes contrary to s 170. A crime against s 170 that involves a specific intent to do grievous bodily harm is usually regarded as worse than one against s 172, which does not necessarily involve such an intent: R v Allan R v Allen [1999] TASSC 112 per Cox CJ at [2]; Barron v Tasmania [2010] TASSC 3, 20 Tas R 114 at [21]-[22]; Director of Public Prosecutions v Blyth [2010] TASCCA 10 at [8]; Director of Public Prosecutions v Blackaby [2013] TASCCA 4 at [18]-[22].
19 In most s 170 cases, the only appropriate course is to send the offender to prison. The learned sentencing judge acknowledged that. He said:
"To satisfy the requirements of specific and general deterrence, denunciation and vindication of the victim, ordinarily a term of imprisonment would be appropriate for a crime of this sort."
20 However he concluded that the interests of justice would be best served by making a home detention order for an operational period of 12 months. He told the respondent that he was taking into account the seriousness of his offending, the circumstances of his offending, his lack of relevant prior convictions, his long-term stable employment and family relationships, his excellent prospects for rehabilitation given that he was aged 29 and the offending was out of character, and the impact of the offending on the victim. He commented that a fully suspended custodial sentence was a realistic option but was unlikely to remind the respondent as much about the significance of his offending as a home detention order. At one point he compared home detention with imprisonment, commenting that home detention was less onerous, but noting that there were no legislative provisions as to parole or partial suspension of the sentence.
21 When a judge or a magistrate makes a home detention order, s 8(2)(a) of the Sentencing Act 1997 permits that sentencer also to make a community correction order. Under s 42AP(1)(d) of the Sentencing Act, a community correction order may contain a special condition requiring the offender to perform community service. The author of the home detention assessment report stated that the respondent was suitable for an order requiring community service, and that he had "expressed a willingness to complete community service hours". However the learned sentencing judge commented that it was "not necessary to make an additional order for community service supervised work".
22 A s 170 crime ordinarily carries a penalty within the range of three to seven years' imprisonment: Papazoglou v The Queen (unreported, 9/1963, Court of Criminal Appeal); R v Allen (above) per Wright J at [13]; Hyde v The Queen [2001] TASSC 50 at [12] (Court of Criminal Appeal); Director of Public Prosecutions v Blyth (above) at [11]-[17]; Director of Public Prosecutions v Rogers [2011] TASCCA 17; Price v Tasmania [2016] TASCCA 22. However this is by no means a hard and fast rule: Jay v Tasmania [2016] TASCCA 12 at [17].
5 No 6/2021
23 The impact of a home detention order is likely to be a lot more onerous for some offenders than it is for others. In this case, the respondent is a family man. The learned sentencing judge knew he would continue to live with his partner and their son, that it was contemplated that he would keep his job, and that his friends and relatives would be able to visit him at his home.
24 As I have said before[1], it is appropriate to regard home detention as a type of imprisonment. The respondent is required to wear an electronic monitoring device. He is unable to go on family outings. He is unable to see friends or relatives anywhere but at his home. He can be checked on by the police at any hour of the day or night.
[1] Director of Public Prosecutions v King [2020] TASCCA 8 at [28].
25 Because of those factors, the impact of the respondent's home detention order on him was certainly substantial. However, when one takes into account his personal circumstances, it is quite clear that a 12-month home detention order was an excessively lenient punishment for the infliction of six stab wounds which left the complainant seriously injured and at risk of death. The sentence was manifestly inadequate. It was unreasonable and plainly unjust: House v The King (1936) 55 CLR 499 at 505.
26 However this was not a case where sending the offender to prison was the only appropriate course. Personal deterrence was not a significant consideration. It was not an appropriate case for the imposition of a heavy sentence for the purposes of general deterrence, denunciation and vindication of the victim. Because of the respondent's otherwise excellent character, and because he committed this crime when confronted with a situation where the complainant was apparently about to rape his fiancée, I concluded that justice could be done if the respondent was required to serve a longer period of home detention and perform a substantial amount of community service.
27 The maximum length of the operational period of a home detention order in this State is 18 months: Sentencing Act, s 42AF(2). The maximum number of hours of community service that a court may order is 240: Sentencing Act, s 31(1). Having regard to the seriousness of the respondent's crime, his personal circumstances, and the mitigating circumstances that I have referred to, I concluded that it would be appropriate to lengthen the operational period of his home detention order and require him to perform a substantial amount of community service.
28 When the Crown appeals against a sentence and manifest inadequacy is established, this Court has a discretion to allow or dismiss the appeal. The relevant principles were discussed by Pearce J in Director of Public Prosecutions v Swan [2016] TASCCA 9, 26 Tas R 32 at [24]-[31]. I concluded that the appeal should be allowed in order to maintain public confidence in the administration of justice by increasing the manifestly inadequate sentence, and for the purpose of identifying principles to be applied in relation to home detention orders.
29 A substantial period of home detention, coupled with a requirement to perform a substantial amount of community service, can amount to a very substantial punishment. As the learned sentencing judge observed, the impact of a home detention order cannot be ameliorated by a grant of parole. If an offender is sentenced to three years' imprisonment, the sentencing judge may make an order authorising a grant of parole after 18 months of the sentence has been served: Sentencing Act, s 17(3). However a home detention order with an operational period of 18 months cannot be the subject of any such amelioration. When a judge sends an offender to prison, no order can be made requiring that offender to undertake any work whilst in custody, whereas a court imposing a home detention order may also require the offender to perform community service, as I have said.
6 No 6/2021
30 Relevantly to re-sentencing, the respondent's counsel provided the Court with information relating to the operation of the home detention order, which had been in force for nearly three months, to the following effect:
The respondent is required to submit weekly plans, which are to be settled about one week in advance. He submits the plans to his probation officer. She gets approval for them from her manager. The respondent's employer has co-operated in rostering his work. He works five nights per week,
including some nights on weekends. The respondent is allowed to drive to and from his workplace within the 30 minutes before and after rostered start and finish times. If he finishes late or early, he may phone the Monitoring and Compliance Unit ("MCU") within 10 minutes after finishing and get permission to travel home at a suitable time. He is not permitted to stop to refuel his car. His fiancée does not drive. His brother puts petrol in
his car for him. He is required to wear an electronic monitoring device at all times. It is an ankle bracelet. He has also been issued with a portable battery and a wall-mounted charger. He is required to charge the battery for two hours every morning and two hours every evening. His compliance with these requirements is checked from time to time by the MCU. He has been fully compliant, although he once received a phone call from the MCU telling him that his battery was running low. He wears trousers to conceal the ankle device. Because his fiancée does not have a driving licence, they have food delivered to their house. They
have to pay delivery fees. Because of his level of compliance with the home detention order, the respondent was granted "exercise privileges". He arranged that he would exercise by walking his son to school, initially on three days each week, but subsequently on five days each week. He will be unable to attend his son's sixth birthday party. Because of the number of people wishing
to attend, it was decided to hold the party away from the family home. He has not been required to undergo any drug tests, nor have the police visited to check on him. 31 In all the circumstances, I concluded that the most appropriate course was to extend the operational period of the home detention order to the maximum of 18 months, and to make a community correction order requiring the respondent to perform the maximum number of hours of community service, namely 240 hours. Because of the COVID-19 pandemic, probation officers are currently requesting the courts to allow long periods for the completion of community service hours. In this case, the author of the home detention assessment report asked that 36 months be allowed if more than 175 hours of community service were to be required. To accord with that request, it was necessary to make a community correction order for an operative period of three years, even though the respondent will need little or no assistance from a probation officer throughout that period.
32 For these reasons, I joined in the making of orders in the following terms:
1 Appeal allowed.
2 Home detention order made on 28 January 2021 varied by increasing operational period to 18 months from that date.
3 Community correction order for an operational period of 3 years commencing 23 April 2021 with a special condition requiring the respondent within that period to satisfactorily perform 240 hours' community service as directed by a probation officer or a supervisor.
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33 In re-sentencing, this Court has dealt with the respondent leniently, but for good reasons. This was an exceptional case. It should not be taken as indicating a view that sentences for s 170 crimes or crimes of violence should become more lenient in the future.
8 No 6/2021
File No CCA 264/2021
DIRECTOR OF PUBLIC PROSECUTIONS v DANIEL JAMES CRISP
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BRETT J 24 May 2021 |
34 I agree with Blow CJ. The reasons expressed by his Honour accurately reflect my reasons for joining in the orders made by the Court.
9 No 6/2021
File No CCA 264/2021
DIRECTOR OF PUBLIC PROSECUTIONS v DANIEL JAMES CRISP
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL GEASON J 24 May 2021 |
35 The Chief Justice has set out the relevant facts and background matters.
36 I agree with his Honour's reasons for the conclusion that the sentence imposed upon the respondent was manifestly inadequate.
37 On a Crown appeal, once error is established a discretion is enlivened. In CMB v Attorney General for the State of New South Wales [2015] HCA 9, 256 CLR 346 at [33] French CJ and Gageler J, in the context of s 5D of the Criminal Appeal Act 1912 (NSW), explained the residual discretion and the circumstances in which it is engaged:
"To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust. The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised." [My emphasis.]
38 The residual discretion appears in s 402(4) of the Criminal Code. The discretion survives in this State on bases other than double jeopardy: Director of Public Prosecutions v Chatters [2011] TASCCA 8, 21 Tas R 26. In simple terms it is a discretion to dismiss a Crown appeal despite an appealable error. It was applied recently in Director of Public Prosecutions v JSP [2020] TASCCA 3, and further discussed in Director of Public Prosecutions v Johnson [2020] TASCCA 4.
39 In Director of Public Prosecutions v Johnson (above), the Court observed at [52] that the error which engages the discretion will not of itself necessarily require the court to decline to exercise it. The court referred to the comments in the judgment of Basten JA in Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 at [35]. In that case, in respect of a sentence imposed in consequence of a "specific material error" made by the sentencing judge, his Honour observed that such error "was only sufficient to engage the first limb of the Director's statutory task. The error itself did not demonstrate the need for this Court to intervene to establish any matter of general principle."
40 When the residual discretion is engaged, a further question needs to be asked: is there a need to intervene to establish a matter of general principle? This consideration falls within the scope of matters constituting the "second hurdle" for the appellant, as it was described by Heydon JA in R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 at [12]: "if [the Court of Criminal Appeal] is to accede to the Crown's desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge's discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised."
41 It is worth reiterating that the purpose of Crown appeals is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons": Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ; Everett v The Queen (1994) 181 CLR 295 at 300 per Brennan, Deane, Dawson and Gaudron JJ. "That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges": Green v The Queen [2011] HCA 49, 244 CLR 462 at [36] per French CJ, Crennan and Kiefel JJ.
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42 It is thereby made clear that the discretion is not extinguished merely because a sentence is "erroneously lenient": Green v The Queen at [1].
43 It must be acknowledged that in some instances the inadequacy of the sentence will sustain a conclusion that the sentence is "an affront to the administration of justice" which risks undermining community attitudes, necessitating a conclusion that the residual discretion not be exercised: Green v The Queen at [42]. In my view this is not such a case. Whilst I have concluded that the sentence was manifestly inadequate, I am not persuaded by the State's submission that the sentence was an affront to the administration of justice which risked undermining community attitudes requiring the discretion should not be exercised. The facts in this case were exceptional, not just in terms of the events leading to the crime, but also for the Respondent's lack of antecedents. It required, therefore, an exceptional response from the court. As such it is not a case in respect of which it could be said that "to decline to intervene would have been to perpetuate a manifest injustice": Munda v Western Australia [2013] HCA 38, 249 CLR 600 at [76] per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ.
44 A proper basis for declining to exercise the residual discretion might have been the opportunity afforded by this appeal to identify principles relevant to the operation of s 42AC of the Sentencing Act 1997. However that opportunity was forgone in circumstances where the Crown chose not to make submissions to that effect, arguing that this crime ought to properly attract a term of imprisonment. Furthermore, the Court has already comprehensively discussed home detention orders, the punitive effect of them, and their place in the sentencing regime: Director of Public Prosecutions v King [2020] TASCCA 8. There is no further point of principle to be added here and none is identified.
45 That being so, the proper course is to exercise the residual discretion to decline to intervene. In the language of R v Hernando (above), the "second hurdle" has not been cleared.
46 For these reasons I would have dismissed the appeal.
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