Gordon v The Queen

[2017] NSWCCA 199

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Gordon v R [2017] NSWCCA 199
Hearing dates:	9 August 2017
Decision date:	23 August 2017
Before:	Gleeson JA at [1] Harrison J at [58] Button J at [59]
Decision:	(1)   Grant leave to appeal against sentence.  (2)   Appeal dismissed.
Catchwords:	CRIMINAL LAW – application for leave to appeal against sentence – late plea of guilty to two offences of supplying prohibited drugs – where total effective sentence of 2 years, 8 months with non-parole period of 1 year, 10 months – where applicant sought to tender new evidence to establish father’s terminal illness – where applicant was aware of father’s illness before sentence but did not raise the matter with his legal representative or in evidence – where no complaint of incompetent legal representation – whether Court should exercise discretion to admit new evidence – whether miscarriage of justice – whether sentence imposed was manifestly excessive.
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 (NSW), s 18 Crimes Act 1900 (NSW), s 193C(1) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules Drug Misuse and Trafficking Act 1985, s 25(1) Supreme Court Act 1970 (NSW), s 75A
Cases Cited:	Bonett v R [2013] NSWCCA 234 Cornwell v R [2015] NSWCA 269 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Goodwin v R (1990) 51 A Crim R 328 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hughes v R [2015] NSWCCA 330 Kanaan v R [2006] NSWCCA 109 Khoury v R [2011] NSWCCA 118 Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49 Luu v R [2008] NSWCCA 285 R v Fordham (1997) 98 A Crim A 359 R v Jones [2002] NSWCCA 494 R v Maslen and Shaw (1995) 79 A Crim R 199 R v Smith (1987) 44 SASR 587 Turkmani v R [2014] NSWCCA 186 Vaiusu v R [2017] NSWCCA 71 Zreika v R (2012) A Crim R 460; [2012] NSWCCA 44
Category:	Sentence
Parties:	Blake Anthony Gordon (Applicant) Regina (Respondent)
Representation:	Counsel: Applicant (Self-represented) M Cinque SC (Respondent)   Solicitors: N/A (Applicant) Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2014/207906
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 27 May 2016 Before: Judge D Arnott SC File Number(s): 2014/207906

Judgment

1. GLEESON JA: The applicant, Blake Anthony Gordon, pleaded guilty upon his arraignment for trial in the District Court on 25 January 2016 to two offences of supplying prohibited drugs contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1). Count 1 involved 39.7 grammes of 3,4-methylenedioxyamphetamine (MDMA or ecstacy). Count 2 involved 3.47 grammes of crystalline methylamphetamine (ice). Each offence carries a maximum penalty of 15 years imprisonment. There is no prescribed standard non-parole period.

2. He was sentenced by Judge Arnott SC in the District Court on 27 May 2016 to a term of imprisonment on each count as follows:

• count 2: a fixed term of seven months imprisonment commencing on 10 May 2016 and expiring on 9 December 2016;

• count 1: a non-parole period of one year eight months commencing from 10 July 2016 and expiring on 9 March 2018 and a balance of term of ten months commencing on 10 March 2018 and expiring on 9 January 2019.

3. In sentencing the applicant on count 1, the judge also took into account a further matter on a Form 1, namely the summary offence of dealing with property suspected to be proceeds of crime (being $1,665 cash) in respect of which the applicant acknowledged his guilt. The maximum penalty for that offence is 50 penalty units or imprisonment for two years or both: Crimes Act 1900 (NSW), s 193C(1). His Honour made a forfeiture order, by consent, in relation to the cash ($1,665) pursuant to the Confiscation of Proceeds of Crime Act 1989 (NSW), s 18.

4. The effective overall sentence is a non-parole period of one year ten months and a head sentence of two years eight months. The applicant is eligible for release on parole on 10 March 2018. It should be observed that the sentence on count 2 has already been served.

5. The applicant now seeks leave to appeal against sentence on two grounds:

1. Compassion, terminally ill father; and,

2. Severity of sentence.

6. In support of the first ground, the applicant seeks to tender as new evidence, a medical certificate from a general practitioner concerning his father’s ill health. The basis upon which this evidence is potentially admissible is addressed below.

Circumstances of the offending

7. In sentencing the applicant, the judge proceeded upon a statement of agreed facts, which he summarised in his reasons. The following outline will suffice.

8. On 14 July 2014, police on patrol in Dee Why stopped the applicant’s car for a random breath test. The applicant appeared to have glazed eyes and his face was pale. Police searched his car and found $490 in the driver’s door tray. Inside a hatch under the steering wheel the police found $1,175, various resealable plastic bags and 3.47 grammes of a clear crystalline substance (later found to be ice). Police also found four foils containing 133 brown diamond-shaped pills (later found to be ecstacy) inside the boot under the floor near the spare wheel and two mobile phones.

9. Following the applicant’s arrest and interview, he admitted the money was his “from collecting off people”, but denied it was from selling prohibited drugs. He later acknowledged in the agreed facts that this answer was not true and that the money was from selling the drug “ice”. He also told police that he knew the crystalline substance was ice, but he had no intention of selling it. He falsely denied knowing about the pills. The applicant was charged and released on conditional bail.

10. Whilst on bail for these offences, the applicant committed other offences - damaging property (in February 2015) and attempting to obtain a restricted substance (on 1 December 2015). The applicant was returned to custody and later released on conditional bail during 2015. There is no issue that in backdating the sentence to commence on 10 May 2016, the sentencing judge correctly took into account the 17 days that the applicant was held on remand when his bail on the subject offences was revoked.

Subjective case

11. The applicant was aged 29 years at the time of the offences and 31 years at the time of sentence. He had a lengthy criminal history commencing in the Children's Court from 1999 for robbery offences and damaging property, and as an adult from 2003, for offences of entering enclosed land (2003), using offensive language in public (2004), affray, resist police in execution of duty and escape police custody (2005), assault occasioning actual bodily harm (2006), shoplifting (2008), damaging property (2009), driving while licence suspended (2010), as well as the offences committed in 2015, after the subject offences. He had previously served sentences by way of periodic detention and home detention.

12. The applicant did not give evidence at the sentencing hearing. He relied upon a report from Dr Ilana Hepner, clinical neuro-psychologist, dated 12 May 2016. Dr Hepner outlined the applicant's upbringing, education and occupational history, along with his medical and drug and alcohol history. The applicant reported first using alcohol in Year 6, marijuana in Year 7 and "speed" in Year 9. His drug use increased over the years and he began using ecstacy, cocaine and ice. He reported that he would spend "days and days awake", drinking and using drugs. He acknowledged that his drug use was problematic. He reported not using alcohol and cocaine for almost two years, but had occasional “slip ups” with respect to “ice”, the last reported use being about one or two weeks before he was assessed by Dr Hepner on 21 April 2016.

13. The applicant was an average student at school and his attendance in high school was poor. He left school at the end of Year 9. After spending two years as a "sponsored" skateboarder, the applicant worked for a number of years, first as a labourer, then mowing lawns, and later in a packing factory and also as a personal trainer.

14. The applicant told Dr Hepner that leading up to the present offences he had crashed someone's car and owed money to "heavies" for the repairs. He had not been working for the prior 18 months and was worried about his ability to pay the debt and feared for his safety. He said he was selling drugs so he could pay the debt.

15. Dr Hepner assessed the applicant's current level of intellectual function to be in the "extremely low range". Dr Hepner did not attribute the applicant's intellectual disability to a history of reported head injuries. Whilst not ruling this out, Dr Hepner considered it likely that it was attributable to multiple factors, including limited education; neurochemical changes associated with long term polysubstance abuse; the cumulative effects of multiple insults to the brain; and the significantly elevated symptoms of psychological distress (depression, anxiety and stress).

16. Dr Hepner was of the opinion that the applicant was probably suffering from cognitive impairment at the time of the offending and this could have impacted on his reasoning, judgment and decision making regarding the self-reported situation concerning the debt owed. Dr Hepner also considered it likely that the applicant’s anti-social personality traits, drug dependency and the acute effects of drug and alcohol use would have played a significant role.

The sentencing judge’s reasons

17. The judge found the applicant’s role to be that of a street seller, supplying illicit drugs to partly support his own dependency and partly for profit. His Honour’s assessed the seriousness of both offences to fall within the lower end of the spectrum for drug supply offences, although nowhere near the bottom of the range.

18. His Honour summarised the applicant’s subjective case outlined above. He rejected the applicant’s claims of non-exculpatory duress reported to Dr Hepner in regards to the debt owed to “heavies”.

19. His Honour referred to the principles regarding the sentencing of persons suffering from a significant mental or intellectual disorder, and had regard to the report and findings of Dr Hepner. His Honour noted that the impairments Dr Hepner found on testing revealed the applicant’s “extremely low range” intelligence, but considered that such impairments did not dictate an automatic mitigation of sentence or make the applicant any less an appropriate medium for deterrence.

20. His Honour found that there was little evidence of remorse and contrition. Further, his Honour found that the applicant’s prospects of rehabilitation and the unlikelihood of his reoffending were dependent upon him addressing his illegal drug use and anti-social personal traits, which his Honour assessed as guarded.

21. His Honour considered that there should be some partial accumulation of the sentences, albeit modest, given his view that the possession of two different kinds of drugs giving rise to the “deemed supply” offences could not properly be regarded as one episode of criminality, referring to Luu v R [2008] NSWCCA 285.

22. A finding of special circumstances was made to allow for the applicant’s supervision and assistance upon his return to the community, particularly with drug and alcohol intervention, oversight of his anti-social personality traits and management of any depression, anxiety and stress issues. That finding was reflected in the ratio of the total effective non-parole period to the total head sentence of 68.75 percent.

23. After allowing a 10 percent discount for his late plea, the judge imposed the sentences indicated.

Ground 1: compassion, terminally ill father

24. The applicant is self-represented. In his one-page handwritten submission dated 26 June 2017, the applicant stated that his father has had cancer for over six years, he has had many operations, he is now in the last stages of his cancer, he is always in and out of hospital, he is very ill, and does not have much longer to live.

25. Attached to the applicant’s submission was a letter dated 20 June 2017, addressed “To whom it may concern” in which the applicant stated that he has been in custody for 14 months and has “learned a lot”, he hopes to be released and “do good” and become a better member of society. The applicant warned that if he loses his father whilst in custody, he will become disturbed and this will “set me off the deep end”. The applicant requested a reduction in his sentence so that he may spend some time with his father. In oral submissions, the applicant stated that he would go “insane” if he loses his father while he remains in prison.

26. The Crown submitted that while the applicant’s predicament calls for sympathy, there is no merit in this ground. The Crown noted that at the time of sentence, the applicant was represented by a solicitor-advocate from the NSW Legal Aid Commission, yet no evidence was put before the sentencing judge regarding the health of the applicant’s father in circumstances where it seems clear that the father’s illness has been protracted.

New evidence

27. In support of this ground, the applicant sought to tender a recent medical certificate in respect of his father to establish that he is terminally ill with cancer. Although the applicant had understandable difficulty as a self-represented litigant in formulating the basis on which this evidence was potentially admissible, it was not suggested that this material is relevant to demonstrate that the applicant’s legal representative was incompetent in failing to raise a matter at the sentencing hearing. The applicant acknowledged that he did not raise this matter with his previous legal representative or Dr Hepner, the psychologist. It seems that the evidence is relied upon to demonstrate that the absence of material which was available to be called at the sentencing hearing (concerning hardship to the applicant), has led to a miscarriage of justice.

28. The Crown objected to the tender of this medical certificate as “fresh” or “new” evidence on the application for leave to appeal against sentence.

29. The medical certificate dated 25 July 2017 is from Dr Muhammad Khan, a general practitioner in Karratha, Western Australia, who is treating the applicant’s father. Dr Khan confirmed that the applicant’s father has been diagnosed with carcinoid tumour with Mets in liver. Dr Khan said that the carcinoid tumour was diagnosed in 2004 and has spread to the liver and lungs. The applicant’s father has seen a specialist and is currently on palliative care. There is presently no cure for his condition.

30. This material is not “fresh” evidence in the sense described by Mason J in Lawless v The Queen (1979) 142 CLR 659 at 675; [1979] HCA 49, namely evidence of which the accused was unaware at the time of his trial and which he could not have discovered with reasonable diligence.

31. The evidence is “new” evidence in the sense that it does not qualify as “fresh” evidence, either because it was available, but not used at the sentencing hearing, or because, in the exercise of reasonable diligence it could have been obtained: Khoury v R [2011] NSWCCA 118 at [107] (Simpson J, Davies J and Grove AJ agreeing).

32. This Court has developed its own principles concerning the receipt of fresh or new evidence, there being no equivalent provision to the Supreme Court Act 1970 (NSW), s 75A, in the Criminal Appeal Act 1912 (NSW) or in the Criminal Appeal Rules.

33. In Goodwin v R (1990) 51 A Crim R 328 at 330 Hunt J proposed the following principles for the receipt of fresh or new evidence on an appeal, including an appeal against sentence:

… What must be established is:

(1) that the additional material sought to be put before this Court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision;

(2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and

(3) that its existence was not made known to the applicant’s legal advisers at the time of those sentencing proceedings.

34. The principles in Goodwin have been referred to with approval in later cases including: R v Jones [2002] NSWCCA 494 at [34] (Bell J, Buddin J agreeing); Kanaan v R [2006] NSWCCA 109 at [268] (Hunt AJA, Buddin and Hoeben JJ); and Bonett v R [2013] NSWCCA 234 at [79]-[82] (Adamson J, Gleeson JA and RA Hulme J agreeing). However, these principles are not absolutely prescriptive and the Court retains a general power to receive fresh or new evidence where the interests of justice require that course; R v Fordham (1997) 98 A Crim R 359 at 378 (Howie AJ, Hunt CJ at CL and Smart J agreeing).

35. In R v Fordham, Howie AJ summarised the position at 377-378 as follows:

Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed.

However, fresh evidence has been received by this Court where a miscarriage of justice may have occurred because there has been incompetent legal representation at the hearing before the sentencing court: R v Abbott (1984) 17 A Crim R 355 or where there has been negligence or carelessness in the presentation of the defence: R v McKenna (CCA, 16 October 1992, unreported). It has been held that new evidence may be admitted where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the appellant and the existence of that evidence was not made known to the legal representatives at the time of sentencing: R v Goodwin (1990) 51 A Crim R 328, cf R v De Marco (CCA, 20 November 1995, unreported). There is also a general power in the Court to receive fresh or new evidence where the interests of justice require that course: R v Many (1990) 51 A Crim R 54.

36. In R v Maslen and Shaw (1995) 79 A Crim R 199, the offender argued on his appeal against sentence that inadequate weight was afforded to the severe illness and limited expectation of life of his 11-year old son. Evidence was sought to be tendered concerning the medical problems of the offender’s son which, it was said, fleshed out the “bare” bones of the material which was before the sentencing judge. Hunt CJ at CL remarked (at 207) that the material before the sentencing judge warranted the description “bare”, since the offender’s father had been called to say that the boy was suffering from Duchenne’s Muscular Dystrophy, with a life expectancy of possibly only four years, and that the offender spent considerable time assisting and caring for the boy. The offender, he said, was also involved with the special school which the boy had been attending. No medical evidence was tendered and the offender himself did not give any evidence at the sentencing hearing. Hunt CJ at CL (Sully and Smart JJ agreeing) rejected the tender of the evidence giving the following reasons (at 207):

It was conceded, as it had to be, that — apart from some recent developments which were not unforeseen — the evidence which is now sought to be tendered was available to be called before the judge. No explanation has been given as to why it was not called. Such evidence is not admissible in this Court until error has first been established; it is not usually admitted in order to establish that error has occurred: Lanham [1970] 2 NSWR 217 at 218; Munday [1981] 2 NSWLR 177 at 178; Cartwright (1989) 17 NSWLR 243 at 257; Henry (1992) 28 NSWLR 348 at 350-352; Hawkins (1993) 67 A Crim R 64 at 67. A departure from that practice has nevertheless been permitted where it has been demonstrated that the absence from the sentencing proceedings of material which was available to be called has led to a miscarriage of justice: Abbott (1985) 17 A Crim R 355 at 356; Goodwin (1990) 51 A Crim R 328 at 329-330. There has been no suggestion made that it was the incompetence of the appellant's legal advisers which led to the failure to call it before. The absence of any evidence from the appellant himself at the time suggests to me that none of this was thought to be of much weight. In the absence of any other explanation, I see no miscarriage of justice, and I would refuse leave for the evidence to be tendered for the purpose of establishing that there was an error made in sentencing. It is, of course, admissible in relation to re-sentencing the appellant in the event that leave be granted and the appeal against sentence is allowed.

37. In Zreika v R (2012) A Crim R 460; [2012] NSWCCA 44 at [79], Johnson J (McClellan CJ at CL and Rothman J agreeing) emphasised that this Court is a court of error and the jurisdiction of the Court to interfere in a sentencing decision is exercisable only where there be seen to be an error of principle, or other mistake of fact or law. Johnson J went on to say that in rare circumstances where a factor operates unequivocally in an offender’s favour but was overlooked by counsel and the sentencing judge, despite appearing clearly on the material before the Court on sentence, an appeal Court may legitimately be invited to have regard to it: at [81]-[82]. Such an invitation will only be entertained in a situation where it would result in the correction of a miscarriage of justice, or serious injustice.

38. In Turkmani v R [2014] NSWCCA 186 at [65]-[66] and [81]-[82], this Court reviewed a number of cases which considered the criteria for admission of fresh evidence as to the offender’s health, where the occurrence of events after the sentence was imposed, show the true significance of facts which were in existence at the time of sentence, referring to the statement of King CJ in R v Smith (1987) 44 SASR 587 at 588. That is not the present case.

39. Here, the applicant concedes that he was aware of the relevant information concerning his father’s ill health, which had been protracted since 2004. As mentioned, he stated in his oral submissions that he did not convey that information to either his legal representative or Dr Hepner. He explained that he had not mentioned this matter to Dr Hepner because he “hated talking about it”. He stated that his brain was gone and that he was “far from himself” at the time he was assessed by Dr Hepner on 21 April 2016 and that he “can’t stand talking about it [his father’s illness]”.

40. Although this explanation was not given on oath, and was not able to be tested by cross-examination, no objection was taken by the Crown to the applicant giving an explanation on the hearing of this application.

41. On one view, the absence of any evidence from the applicant at the time of the sentencing hearing is consistent with him not placing much, if any, weight on the hardship of imprisonment as a consequence of separation from his terminally ill father. Notably, the applicant did not attempt to explain what contact, if any, he had had with his father since he had been diagnosed with cancer in 2004.

42. Another view is that given the applicant’s extremely low cognitive ability, it is unsurprising that he did not appreciate the potential significance of the matter and how it might be relied upon either as a factor mitigating penalty or as a ground for a finding of special circumstances. That would be consistent with him not mentioning his father’s illness to his legal representative or Dr Hepner. If the applicant had mentioned the matter to them, it could be expected that his legal representative would have sought to rely on this matter and tendered relevant evidence at the sentencing hearing.

43. However, even if the latter view is adopted, no other material has been tendered on this application which would justify the Court receiving this medical certificate according to the principles referred to above. If a submission concerning hardship to the applicant as a consequence of separation from his terminally ill father had been made at the sentencing hearing, it could be expected that the evidence would have addressed both the father’s likely life expectancy (accepting the inherent uncertainty surrounding such an opinion) and likely impact of imprisonment on the applicant’s mental health.

44. Bare assertions by the applicant that he is likely to go “insane” if his father dies while he is in prison, while evoking sympathy, cannot be given any real weight. Any suggestion of hardship to the applicant in terms of the effect of imprisonment on his mental health is a matter requiring evidence.

45. In my view, the applicant has not demonstrated that he did not receive a “fair sentencing hearing”. No miscarriage of justice was occasioned by the failure to obtain a medical certificate, like that from Dr Khan, to place before the sentencing judge.

46. This is not a case of a diagnosis being made after the date of sentence, or of deterioration in a medical condition that was the subject of evidence in the proceedings on sentence, but the true gravity of which was not known at that time: Hughes v R [2015] NSWCCA 330 at [382]-[386]; Cornwell v R [2015] NSWCA 269 at [34]-[39]. As I have said, the condition of the father of the applicant was well known to the latter as at the date of sentence; for his own reasons, he told neither the psychologist nor his lawyer about it, with the result that no evidence of it was placed before the sentencing judge.

47. Having regard to the limitations upon this Court’s jurisdiction, the hardship to the applicant of imprisonment is not a matter able to be raised for the first time before this Court. The medical certificate from Dr Khan is not admissible and its tender as “new” evidence should be rejected.

Ground 2: severity of sentence

48. No specific error is alleged in the sentencing process. The sole complaint is that the sentence is severe. A submission that a sentence is excessive (or inadequate) derives from the last kind of error identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. To make good this ground, the applicant must demonstrate that the sentence was “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6].

49. In Vaiusu v R [2017] NSWCCA 71 at [28] the Court (Bathurst CJ; RA Hulme J; Beech-Jones J) remarked that when dealing with a contention that a sentence is manifestly excessive it is necessary to have regard to the following principles:

(a) Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

(b) Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

(c) It is not to the point that this Court might have exercised the sentencing discretion differently.

(d) There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

(e) It is for the applicant to establish that the sentence was unreasonable or plainly unjust.

50. The circumstances of the offending have been outlined above. The judge found that the applicant was dealing in prohibited drugs to a substantial degree as revealed by the quantity of the MDMA (133 pills) in his possession, his possession of not one but two types of illegal drugs, and the indicia of supply ($1,665 in cash, two mobile phones and various plastic resealable bags). His Honour’s found that both offences fall within the lower end of the spectrum for drug supply offences. Those findings were open.

51. Consistently with the concession at the sentencing hearing by the applicant’s legal representative, the judge rejected the applicant’s claims of non-exculpatory duress in regards to the debt owed to “heavies”.

52. The judge was not persuaded that the matters highlighted by the applicant’s legal representative, relevantly, the applicant’s level of intelligence falling into the extremely low range, and Dr Hepner’s view that the applicant was probably suffering from cognitive impairment at the time of offending, amounted to exceptional reasons why the appropriate penalty should not be one of full-time custody.

53. The applicant was given a 10 percent discount for his late plea. No complaint can be made concerning this decision. Given the maximum penalty of 15 years imprisonment (and taking into account the Form 1 matter), the starting point for the sentence on count 1, before the discount, was plainly within the range of appropriate sentences.

54. No issue can be raised in relation to the very modest partial accumulation of the sentence on count 2, noting that the sentence on count 2 has already been served.

55. The judge carefully balanced the objective circumstances of the offending and the applicant’s subjective case, including the material favourable to the applicant in the psychologist’s report. Whilst arguably some greater weight might have been given to the finding of special circumstances, no issue can be taken with his Honour’s decision, which was reflected in the ratio of the total effective non-parole period to the total head sentence of 68.75 percent.

56. I am not persuaded that the sentences imposed by his Honour were unreasonable or unjust.

Conclusion

57. I would grant leave to appeal against sentence, but dismiss the appeal. Accordingly, I propose the following orders:

1. Grant leave to appeal against sentence.

2. Appeal dismissed.

58. HARRISON J: I agree with Gleeson JA.

59. BUTTON J: I agree with Gleeson JA.

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Decision last updated: 23 August 2017