El-Hassan v The King

[2023] VSCA 307

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2023 0196
MORTADA EL-HASSAN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2023
DATE OF JUDGMENT:	7 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 307
JUDGMENT APPEALED FROM:	DPP v El-Hassan [2023] VCC 1678 (Judge Wilmoth)

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CRIMINAL LAW – Appeal – Sentence – Reckless conduct endangering serious injury and recklessly exposing emergency worker to risk by driving and associated offences – Possessing drug of dependence – Discharging firearm at premises and being a prohibited person in possession of firearm and associated offences – Contravention of family violence intervention order – Total effective sentence 5 years and 8 months’ imprisonment with 3 years and 6 months non-parole – Plea of guilty – Whether judge failed to apply Worboyes principles – Whether judge failed to take into account utilitarian benefit of plea – Applicant suffered injuries during arrest – Whether judge failed to take into account burdensome nature of custody as a result of injuries – Applicant suffers mild intellectual development disorder – Moral culpability – General and specific deterrence – Whether judge failed to take into account Verdins considerations –Whether sentence manifestly excessive – Leave to appeal refused.

R v Verdins (2007) 16 VR 269; Worboyes v The Queen (2021) 96 MVR 344; Bugmy v The Queen (2013) 249 CLR 571; Milk v The Queen [2015] VSCA 237.

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Counsel
Applicant:		Mr D Dann KC
Respondent:		Mr J Johnston
Solicitors
Applicant:	Slaveski & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

1. On 4 May 2023, the applicant pleaded guilty before a judge in the County Court to reckless conduct endangering serious injury[1] (charge 1); recklessly exposing an emergency worker to risk by driving[2] (charge 2); possessing a drug of dependence[3] (charge 3); discharging a firearm at premises[4] (charge 4); being a prohibited person in possession of a firearm[5] (charge 5); and persistent contravention of a family violence intervention order[6] (charge 6).  He also pleaded guilty to the summary offences of driving whilst disqualified[7] (summary charge 15); possessing a controlled weapon[8] (summary charge 23); and possessing a prohibited weapon[9] (summary charge 31).

   [1]Crimes Act 1958, s 23. The maximum penalty is five years’ imprisonment.

   [2]Crimes Act 1958, s 317AE(1). The maximum penalty is 10 years’ imprisonment.

   [3]Drugs, Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is 12 months’ imprisonment.

   [4]Firearms Act 1996, s 131A. The maximum penalty is 15 years’ imprisonment.

   [5]Firearms Act 1996, s 5(1). The maximum penalty is 10 years’ imprisonment.

   [6]Family Violence Protection Act 2008, s 125A.  The maximum penalty is five years’ imprisonment.

   [7]Road Safety Act 1986, s 30(1). The maximum penalty is two years’ imprisonment.

   [8]Control of Weapons Act 1990, s 6(1). The maximum penalty is 12 months’ imprisonment.

   [9]Control of Weapons Act 1990, s 5AA.The maximum penalty is two years’ imprisonment.

2. Following a plea, on 14 September 2023 the judge sentenced the applicant to a total effective sentence of five years and eight months’ imprisonment, with a non-parole period of three years and six months, in accordance with the following table:

Charge	Offence		Sentence	Cumulation
1	Reckless conduct endangering serious injury		18 months	9 months
2	Recklessly exposing an emergency worker to risk by driving		18 months	9 months
3	Possessing a drug of dependence		2 months	Nil
4	Discharging a firearm at premises		3 years	Base
5	Being a prohibited person in possession of a firearm		2 years	6 months
6	Persistent contravention of a family violence intervention order		3 months	Nil
15 (Summary)	Driving whilst disqualified		12 months	6 months
23 (Summary)	Possessing a controlled weapon		3 months	Nil
31 (Summary)	Possessing a prohibited weapon		6 months	2 months
Total effective sentence		5 years and 8 months’ imprisonment
Non-parole period		3 years and 6 months’ imprisonment
Pre-sentence detention		1099 days
Section 6AAA declaration		6 years and 6 months’ imprisonment with 5 years non-parole
Other orders		Forfeiture and disposal orders; driver’s license cancelled and disqualified for two years

1. The applicant now seeks leave to appeal against his sentence on four grounds:

   1The Learned Sentencing Judge erred in failing to recognise that the Applicant’s guilty pleas were entitled to an additional sentencing discount, on account of the fact that they were entered at a time when the criminal justice system was still trying to recover from the impact of the COVID-19 pandemic.

   2The Learned Sentencing Judge erred in failing to impose sentence on the basis that the Applicant’s time in custody had been and would be more burdensome on account of the injuries suffered at the time of his arrest.

   3The Learned Sentencing Judge erred in failing to moderate the weight to be applied to General and Specific Deterrence in recognition of the Applicant’s reduced intellectual functioning.

   4The total effective sentence and the non-parole period are manifestly excessive.

2. For the reasons that follow, we consider that leave to appeal should be refused.

Applicant’s antecedents

1. Counsel for the applicant accepted that the applicant was ‘a man with a lengthy and disturbing criminal history’.  So much cannot be gainsaid.

2. The applicant, now aged 29 years,[10] has a significant number of prior convictions, including: intentionally causing injury (2013); robbery (2013); recklessly causing injury (2017); making a threat to kill (2017); unlawful assault (2017); assault with a weapon (2019); being a prohibited person in possession of a firearm (2019); possessing a controlled weapon (2020); contravening a family violence intervention order (2017); dealing with property suspected of being the proceeds of crime (2016, 2017, 2019, 2020); theft (2016, 2017, 2019, 2020); theft of a motor vehicle (2017, 2019, 2020); obtaining property by deception (2017); obtaining financial advantage by deception (2017); handling stolen goods (2017, 2019, 2020); going equipped to steal (2017); burglary (2019, 2020); criminal damage (2019); trafficking a drug of dependence (2019); possessing a drug of dependence (2019); failing to answer bail (2016, 2017, 2019, 2020); and committing an indictable offence on bail (2019, 2020).  He also has convictions for serious driving offences, including: driving at a speed dangerous (2020); dangerous driving (2017); failing to stop at police direction (2020); failing to provide a sample of oral fluid (2017); and has been penalised for unlicensed driving and a large number of instances of excessive speed. 

   [10]His date of birth is 13 August 1994.

3. A range of sentences have been imposed for the applicant’s previous offending, including community correction orders — a number of which he has breached (2014, 2017, 2019, 2020) — and terms of imprisonment.

The offending

1. The instant offending was constituted principally by two serious episodes.

2. First, on 29 August 2020, at about 10.45 am, police attempted to intercept the applicant, who was driving a black Audi sports car erratically in New Street, Brighton.  Despite the police attempts at interception, however, and despite the presence of cyclists and pedestrians, the applicant accelerated sharply to an estimated speed of 130 kph (in a 60 kph speed zone).  Police then discontinued the attempted interception.

3. At 10.52 am, the Audi, again being driven erratically — cutting off other motorists and driving at high speeds — was once more observed at a vehicle checkpoint on Beaconsfield Parade, Middle Park.  Police members at the checkpoint attempted to intercept the vehicle, but the applicant fled, driving towards Fitzroy Street, St Kilda.  

4. The Audi was sighted again, and reported to police, by members of the public as it was being driven in a dangerous and erratic manner on Fitzroy Street, St Kilda.  The applicant was observed to be speeding and running red lights, narrowly avoiding a collision with another vehicle at the intersection of Lakeside Drive and Fitzroy Street (charge 1 – reckless conduct endangering serious injury).  The Audi was driven at high speeds in a signed 40 kph zone being used by motorists, cyclists and pedestrians.

5. Police then attempted to intercept the vehicle at the intersection of Punt Road and Wellington Street, St Kilda.  The Audi continued until it stopped, facing south, on St Kilda Road, approximately two metres from vehicles stationary at a red light travelling west on Wellington Street.  Police manoeuvred their vehicle to attempt to cut the Audi off — so that the front passenger side bumper of the police vehicle was facing the Audi’s front driver’s side bumper — then moved their vehicle forward in an attempt to completely block the Audi’s path.  The applicant then accelerated the Audi from stationary, causing a collision between the front bumper of the police vehicle and the Audi’s driver’s side door (charge 2 – reckless exposure of emergency worker to risk by driving).  Due to significant damage to the Audi’s rear driver’s side wheel, the applicant’s attempt to flee was foiled, and the vehicle became immobile after approximately 50 metres.

6. Police gave chase on foot, and, as they approached the vehicle, the applicant and his passenger, Brittany McGuire — with whom he was in an intimate relationship — ran from the vehicle.  McGuire was apprehended shortly afterwards, but the applicant was able to avoid apprehension by entering a house and leaping from the balcony.  A police search of the Audi located a yellow-handled knife (summary charge 23 – possessing a controlled weapon), a butterfly knife (summary charge 31 – possessing a prohibited weapon); six vials of steroids (charge 3 – possessing a drug of dependence); and syringes and wipes.  The applicant was unlicensed, and had been disqualified from driving for 12 months by the Magistrates’ Court on 19 February 2020.

7. The second episode of offending occurred less than a week after the first, on 1 September 2020, at 11.26 pm.

8. Brittany McGuire and her mother were inside their residence, the Melbourne Hostel — which was owned by McGuire’s mother — located at 14 Punt Road, St Kilda.  Guests were staying at the hostel at the time.

9. The applicant drove a black Jaguar to the rear of the hostel and fired one shot from a sawn-off shotgun into the side door, damaging it by creating a hole in the door, beside the lock.  Occupants of the residence, including McGuire and her mother, retreated from the back door onto Punt Road.  The applicant then fired a second shot into the lock area of the door, before forcing the door open and gaining entry.  He entered the rear storage room of the premises walking towards the kitchen whilst holding the firearm, remaining inside for approximately five seconds before exiting and driving away (charge 4 – discharging a firearm at premises; charge 5 – being a prohibited person in possession of a firearm; summary charge 15 – driving whilst disqualified).

10. Apart from these two episodes of offending, the applicant also persistently breached a family violence intervention order.

11. The applicant’s former partner, Lorena Oliver is the mother of the applicant’s son, Mazen El-Hassan, aged four years at relevant times.  A family violence intervention order protecting Ms Oliver and her son was granted on 31 August 2017, with operation until 31 December 2060.

12. On Sunday, 6 September 2020, the applicant was present with Ms Oliver at the EQ Towers in A’Beckett Street, Melbourne, in contravention of the intervention order.  He was again present at that address with Ms Oliver in breach of the intervention order on Monday, 7 September 2020.  And on Tuesday, 8 September 2020 the applicant was present with Ms Oliver at the Quest Apartments in Burwood East (charge 6 – persistent contravention of family violence intervention order).

13. Police from the Special Operations Group arrested the applicant at the Quest Apartments at 1.15 pm on Thursday, 10 September 2020.  During the arrest, the applicant was kicked in the back by a police member and was bitten on the leg by a police dog.  According to hospital records, the applicant sustained spinal fractures at T7 and T8, which cause ongoing and almost continuous pain.  Further, the dog bite was severe and needed treatment in hospital, involving the debridement of necrotic tissue and sutures.  The bite caused nerve damage, and the applicant has a visible scar.

Judge’s sentencing remarks

1. The judge observed that the applicant’s driving, and the confrontation by firing a gun into a person’s residence, was ‘serious offending’, deserving ‘condemnation by the court and an appropriately firm sentence’.  Further, the judge observed that, while the offence of recklessly exposing an emergency worker to risk by driving ‘does not sit at the highest level of seriousness, it is certainly not at a low level’.  The judge also observed that the offence of persistent breach of an intervention order was at the ‘lower end of the range of seriousness’.

2. As to the applicant’s personal circumstances, the judge noted that the applicant was born in Lebanon, into a household that was ‘dysfunctional and chaotic’ due to his mother’s erratic behaviour resulting from her undiagnosed schizophrenia.  The judge noted that the applicant was badly affected by the death of his paternal aunt when the applicant was aged 17 years.  He thus ‘turned to drugs to deal with [his] grief and other problems’, and began offending in his teens.  The judge said that his ‘quite extensive criminal history is consistent with worsening drug use in [his] late teenage years’, and it ‘includes convictions for serious offending including dishonesty and violence, seven previous convictions for unlicensed driving and two previous convictions for dangerous driving’. 

3. Moreover, the judge noted, the applicant had ‘a very limited work history’.  He ‘completed only two years of secondary school, and later began a carpentry apprenticeship but did not finish it’.  The applicant ‘worked for a short time in factories after that’.

4. The judge noted that a neuropsychologist, Dr Matthew Staios, had assessed the applicant in April 2023.  Dr Staios had concluded that the applicant’s ‘level of intelligence is within the extremely low range’.  The applicant was diagnosed with ‘chronic poly-substance abuse disorder, depressive disorder and provisional Post Traumatic Stress Disorder, possibly arising from [his] disordered childhood, but also from traumatic experiences while living in Tripoli for eight months as a child, and witnessing confronting scenes, including violent murders’.  When Dr Staios assessed the applicant again in May 2023, he concluded that the applicant had ‘a mild intellectual development disorder, which has been long-standing’, and that parts of his intellectual functioning ‘are at the extremely low range’.  The judge also observed:

   Dr Staios explained that against the background of a chaotic and unstable upbringing your intellectual disorder is amplified, and in combination they have had significant impact on your capacity for security, healthy attachment and general stability.

   In addition, your long-term drug abuse, in conjunction with the factors just mentioned, has had an impact on your reasoning skills.  Dr Staios explained that when you are acutely intoxicated your intellectual abilities are highly likely to be further limited, which will further compromise overall cognitive skills.

   This brings into play the principles in the case of Verdins,^[[11]] meaning that your moral culpability for your offending is reduced somewhat, and that is to be taken into account in determining an appropriate sentence.

   [11]R v Verdins (2007) 16 VR 269.

1. While the applicant had been in prison and abstinent from drugs, the judge noted, he had ‘become motivated to remain so, and [wished] to engage in extensive and targeted treatment’.  Perhaps somewhat optimistically, the judge thought the applicant’s prospects for rehabilitation were ‘better than in the past’.

Discussion

1. We consider that there is substance in the first ground, which relates to the relevance of the applicant’s pleas of guilty being entered during the pandemic. 

2. Counsel for the applicant on the plea had submitted that the applicant’s pleas of guilty were of ‘particular utilitarian benefit when the courts are working to clear the backlog created by the COVID-19 pandemic’.  An examination of the judge’s sentencing remarks reveals, however, that the judge made no reference to any Worboyes[12] ‘discount’, let alone any utilitarian benefit that the applicant’s pleas may have had.  It might have been expected that, had the judge taken these matters into account, she would have said so.  (Similarly, had the judge been minded to reject the submission that the pleas had particular utilitarian benefit, it might have been expected that she would have explained the reasons for that rejection.)  There is, therefore, some force in the contention that the judge does not appear to have afforded any weight to the fact that the applicant’s pleas of guilty had particular utilitarian benefit.

   [12]Worboyes v The Queen (2021) 96 MVR 344.

3. There is also substance in the second ground, which contends that the judge failed to take into account that the applicant’s time in custody had been, and would be, more burdensome on account of the injuries that he suffered at the time of his arrest. 

4. Counsel for the applicant on the plea had submitted that, as the result of injuries he received, the applicant continues to walk with a limp; has mobility issues due to his back; had been unable to receive adequate treatment for his injuries in custody; and his time in custody had been made more difficult due to the fact that he was now in constant pain.  Despite the submissions advanced on the plea, however, it appears that, beyond noting that the applicant’s injuries ‘still cause [him] ongoing almost continuous pain’, and that, while in custody the applicant has ‘very limited opportunities to move around and relieve the pain’, the judge gave no indication that she had afforded any mitigation of sentence to the applicant based on the hardship flowing from his injuries (and if not, why not).

5. In Milk, it was observed:[13]

   Sometimes an offender will suffer injury in the course of committing an offence.  It has been held that such an injury may be taken into account whether self-inflicted;[14] inflicted by police[15] or security guards;[16] or by the victim.[17]  In some cases, the consequences of a revenge attack or similar may be taken into account.[18] 

   [13]Milk v The Queen [2015] VSCA 237, [26] (Priest JA).

   [14]R v Lawless (Unreported, Court of Criminal Appeal, Vic, 16 May 1989); R v Fletcher (1980) 4 Crim LJ 244.

   [15]R v Barci (1994) 76 A Crim R 103. Cf R v Hannigan [2009] 2 Qd R 331.

   [16]Sharpe v The Queen [2006] NSWCCA 255.

   [17]R v Noble [1996] 1 Qd R 329.

   [18]Chaplin v The Queen (2010) 55 MVR 591, 593–4 [13]–[14]; R v Daetz (2003) 139 A Crim R 398, 410–11 [62]; R v Allpass (1993) 72 A Crim R 561.

6. Although the authorities do not speak with one voice, the better view appears to be that a condition resulting from injuries sustained in the commission of a crime, or at the time of arrest, which occasions extra hardship to an offender will be relevant in at least two ways: first, it will be relevant to the choice of the sanction (and whether imprisonment is ordered at all); and, secondly, it may well dictate the length of any term of imprisonment.[19]  In the present case, however, it does not appear that the judge distinctly addressed the relevance to sentence of the more burdensome nature of custody to the applicant resulting from his injuries.  That was an error.

   [19]See R v Barci (1994) 76 A Crim R 103; R v Lawless (Unreported, Court of Criminal Appeal, Vic, 16 May 1989); R v Fletcher (1980) 4 Crim LJ 244; R v Daetz (2003) 139 A Crim R 398; Pasznyk v The Queen (2014) 43 VR 169. Cf R v Tognolini (Unreported, Court of Criminal Appeal, Vic, 26 July 1972); R v Rollason (Unreported, Court of Criminal Appeal, Vic, 1 June 1993); R v Taylor (Unreported, Court of Criminal Appeal, Vic, 21 May 1974).

1. There is no substance in the applicant’s third ground, however, which contends that the judge erred in failing to moderate the weight to be applied to general and specific deterrence in recognition of the applicant’s reduced intellectual functioning.  As we have mentioned,[20] the judge specifically observed that the principles in Verdins had been brought ‘into play’ by Dr Staios’ evidence as to the applicant’s intellectual disorder, ‘meaning that [the applicant’s] moral culpability for [his] offending is reduced somewhat, and that is to be taken into account in determining an appropriate sentence’.  In our view, that observation reflects the language used to distil the principles contained in limbs 1, 2, 3 and 4 of Verdins.[21]  As a result, we cannot accept that the judge failed to reduce the weight to be afforded to general or specific deterrence.  Reduced moral culpability — which the judge unequivocally acknowledged had to be taken into account in determining an appropriate sentence — must bear on the weight to be afforded to both general and specific deterrence.

   [20]At [24] above.

   [21]Verdins, 276 [32].

2. Despite being of the opinion that there is substance in the first and second grounds, however, we would nonetheless refuse leave to appeal, since we consider that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed.[22]  Indeed, given the nature of the applicant’s offending, we consider the individual sentences; the orders for cumulation; the resulting total effective sentence; and the non-parole period, to be quite moderate.  That opinion also informs our conclusion on the fourth ground.

   [22]See Criminal Procedure Act 2009, ss 280(1) and (2).

3. Under cover of the fourth ground, the applicant’s counsel submitted that the total effective sentence and the non-parole period are manifestly excessive taking account of the applicant’s ‘utilitarian’ pleas of guilty; his ‘chaotic and unstable upbringing’, attracting Bugmy[23] principles; his mild intellectual development disorder, engaging Verdins considerations; the injuries suffered in the course of his arrest, which will also make his time in custody more burdensome; the fact that his prospects of rehabilitation are better than was the case previously; and the fact that the offences were, in the main, committed over a relatively confined period.

   [23]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).

4. In our view, paying proper regard to the nature of the applicant’s offending, and his criminal history, the moderate nature of the sentence can only be explained by the judge having given effect to the mitigating features of the case, including the applicant’s chaotic and unstable upbringing.[24]  Indeed, notwithstanding the nature of his upbringing, it cannot be denied that the applicant’s criminal record remains highly relevant.  Although, of course, the applicant is not to be punished again for his prior offending, his extremely poor criminal antecedents are relevant as an indicator of his moral culpability; his prospects of rehabilitation; his dangerous propensities (and, consequentially, the community’s need for protection); and the increased importance of specific deterrence as a factor in sentencing.[25]  In Veen [No 2][26] the High Court made it clear that, although the applicant’s antecedent criminal history ‘cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence’, it is relevant

   to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.  In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.  Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency.  That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.

   [24]Bugmy, 592–3 [37], 594–5 [42]–[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

   [25]R v O’Brien and Gloster [1997] 2 VR 714, 718 (Charles JA).

   [26]Veen v The Queen [No 2] (1988) 164 CLR 465, 477–8 (Mason CJ, Brennan, Dawson and Toohey JJ). See also R v O’Brien and Gloster [1997] 2 VR 714, 718 (Charles JA); Bugmy, 595 [45].

5. Bugmy concerned the sentencing of an offender who had suffered profound childhood deprivation, exposed to violence and substance abuse.  It might be doubted that the evidence concerning the applicant’s childhood rose to that level.  But even assuming in the applicant’s favour that it did, and was therefore sufficient to engage the principles in Bugmy, the High Court made it plain in that case that an inability to control violent responses to frustration, borne of an exposure to violence and substance abuse, may increase the importance of community protection as a feature in sentencing:[27]

   Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision.  However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment.  Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.[28]  An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced.  However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

   [27]Bugmy, 595 [44] (citations as in original).

   [28]Veen v The Queen [No 2] (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ.

6. We are wholly unpersuaded that it is reasonably arguable that any aspect of the sentence imposed on the applicant is manifestly excessive.  As we have said, we consider that the moderate nature of the sentence can only be explained by the judge having given effect to the mitigating features of the case.  The applicant’s criminal history is appalling and peppered with criminal conduct similar in nature to aspects of the offending for which he was most recently sentenced.  Assuming that general and specific deterrence fell to be moderated to an extent in the applicant’s case — it will be remembered that his intellectual development disorder is ‘mild’ — they were not wholly eliminated as factors relevant to sentencing.  Moreover, denunciation and just punishment had to be given appropriate weight in the sentencing synthesis, and community protection was of particular relevance.  As to the applicant’s prospects of rehabilitation,  we would not be as sanguine as the sentencing judge appears to have been.

7. Manifest excess is a conclusion which does not depend upon the attribution of identified specific error.[29]  This Court’s intervention is justified only if persuaded that the sentence is wholly outside the range of those open in the sound exercise of discretion.[30]  In our view, the impugned sentence is well within the range of those open in the sound exercise of the sentencing discretion.

   [29]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).

   [30]Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].

8. Leave to appeal will be refused.

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