Moore v The State of Western Australia
[2019] WASCA 35
•19 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MOORE -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 35
CORAM: BUSS P
MAZZA JA
HEARD: 6 DECEMBER 2018
DELIVERED : 19 FEBRUARY 2019
FILE NO/S: CACR 184 of 2018
BETWEEN: HERBERT JAMES MOORE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: QUAIL DCJ
File Number : IND 1834 of 2017
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after trial of seven counts including multiple counts of aggravated home burglary and one count of unlawful and indecent assault - Total effective sentence of 10 years' imprisonment - Totality principle
Legislation:
Criminal Code (WA), s 324, s 378, s 401(1)(a), s 401(2)(a), s 552
Sentencing Act 1995 (WA), s 6, s 7, s 8
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S D Freitag SC |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Eighth Avenue Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Doyle [2017] WASCA 207
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence.
The appellant was charged on indictment with seven counts.
Count 1 alleged that on 16 August 2016, at Rivervale, the appellant attempted to enter or be in the place of Heath Alexander McKenzie without his consent with intent to commit an offence therein, contrary to s 401(1)(a) read with s 552 of the Criminal Code (WA) (the Code). Count 1 also pleaded that immediately before the commission of the offence, the appellant knew or ought to have known that there was another person in the place and that the place was ordinarily used for human habitation.
Count 2 alleged that on 16 August 2016, at Rivervale, the appellant entered or was in the place of Aoife Bridget McGauran without her consent, with intent to commit an offence therein, contrary to s 401(1)(a) of the Code. Count 2 also pleaded that immediately before the commission of the offence, the appellant knew or ought to have known that there was another person in the place and that the place was ordinarily used for human habitation.
Count 3 alleged that on 17 August 2016, at Rivervale, the appellant, while in the place of Jason Mitchell Drewett without his consent, committed the offence of assault, contrary to s 401(2)(a) of the Code. Count 3 also pleaded that immediately before the commission of the offence, the appellant knew or ought to have known that there was another person in the place and that the place was ordinarily used for human habitation.
Count 4 alleged that on 17 August 2016, at Rivervale, the appellant, while in the place of Christopher James Dunn without his consent, committed the offence of stealing, contrary to s 401(2)(a) of the Code. Count 4 also pleaded that immediately before the commission of the offence, the appellant knew or ought to have known that there was another person in the place and that the place was ordinarily used for human habitation.
Count 5 alleged that on 17 August 2016, at Rivervale, the appellant, while in the place of RB without her consent, committed the offence of assault, contrary to s 401(2)(a) of the Code. Count 5 also pleaded that the appellant did bodily harm to RB, and that immediately before the commission of the offence the appellant knew or ought to have known that there was another person in the place and that the place was ordinarily used for human habitation.
Count 6 alleged that on the same date and at the same place as in count 5, the appellant unlawfully and indecently assaulted RB by attempting to remove her singlet, contrary to s 324 of the Code. Count 6 also pleaded that the appellant did bodily harm to RB, and that the offence was committed in the course of conduct that constituted an aggravated home burglary.
Count 7 alleged that on the same date and at the same place as in count 5, the appellant stole a black leather wallet the property of RB, contrary to s 378 of the Code.
The appellant pleaded not guilty to each of the seven counts.
On 11 June 2018, after a trial before Quail DCJ and a jury, the appellant was convicted of each of the seven counts.
On 31 August 2018, the trial judge ultimately imposed individual sentences of immediate imprisonment as follows:
(a)Count 1: 15 months;
(b)Count 2: 2 years;
(c)Count 3: 2 years 6 months;
(d)Count 4: 2 years;
(e)Count 5: 5 years 6 months;
(f)Count 6: 5 years 6 months; and
(g)Count 7: 6 months.
For the purposes of the application of the totality principle, his Honour reduced the individual sentences he would otherwise have imposed for count 2 (from 3 years to 2 years' immediate imprisonment), count 3 (from 4 years to 2 years 6 months' immediate imprisonment) and count 5 (from 6 years to 5 years 6 months' imprisonment).
The trial judge ordered that the individual sentences for counts 2, 3 and 5 be served cumulatively and that the individual sentences for the other counts be served concurrently with each other and concurrently with the accumulated sentences for counts 2, 3 and 5. The total effective sentence was therefore 10 years' imprisonment. The total effective sentence was backdated to 18 August 2016. A parole eligibility order was made.
The sole ground of appeal alleges that the total effective sentence of 10 years' imprisonment infringed the first limb of the totality principle.
We would refuse leave to appeal. Our reasons are as follows.
The fact and circumstances of the offending
As to counts 1 and 2, on 16 August 2016 Ms W left her home to walk her dog at a nearby park. At the time, the appellant was also at the park. He followed Ms W and crudely and offensively propositioned her for sex. Ms W ignored the appellant and ran towards her home. The appellant chased Ms W. She managed to elude him and arrived safely at her home. The appellant ran along the driveway of a block of units in his attempt to locate Ms W. He went to the unit at the rear of the block. Mr McKenzie owned the unit. The appellant removed a flyscreen from a window and opened the window with the intention of entering the premises and looking for Ms W. The trial judge found that the appellant had become 'fixated upon and intended to indecently assault' Ms W (ts 775). Mr McKenzie was standing near the window and saw the appellant. Mr McKenzie's presence caused the appellant to cease attempting to enter the premises. The appellant ran towards the front of the block of units and entered another unit in the block, which was unlocked. Ms McGauran owned the unit. His Honour found that the appellant entered the unit because he was still searching for Ms W with the intention of indecently assaulting her. Mr McKenzie followed the appellant. When the appellant saw Ms McGauran, he said words to the effect that she was not the woman from the park with the dog. Another neighbour, Mr Mohammadi, who had noticed the appellant when he initially entered the block of units, approached Ms McGauran's unit because he had seen the appellant enter the unit and he knew that the appellant did not live there. He came to the door of the unit. His intervention caused the appellant to leave the unit. The appellant walked away from the block of units and down the road.
Shortly afterwards, police apprehended the appellant. He was charged and released on bail. The next day he committed the offences the subject of counts 3, 4, 5, 6 and 7.
As to counts 3, 4, 5, 6 and 7, on the evening of 17 August 2016 the appellant entered the premises of Mr Drewett and Ms Ford. He gained entry by picking up a gas bottle and throwing it through a glass door. Mr Drewett came into the kitchen and told the appellant to leave. After a brief argument, during which the appellant threw the gas bottle at Mr Drewett, the appellant left the premises. Mr Drewett caught the gas bottle with his hands and did not suffer any injury. Ms Ford heard the glass break and saw the appellant briefly. She ran and hid in another part of the house.
Within minutes after leaving Mr Drewett and Ms Ford's house, the appellant entered the premises of Mr Dunn and Ms Funnell through an unlocked door. They were asleep. The appellant entered their bedroom and stole a mobile telephone, a jacket, car keys, a packet of cigarettes and other items. The appellant fled when he was confronted by Mr Dunn.
Mr Dunn chased the appellant for a couple of hundred metres. The appellant escaped and, almost immediately, entered RB's home. She was alone with her two dogs. Her husband was away. The appellant entered the home through the unlocked front door. He approached RB, who was in her dressing gown. The appellant told RB to be quiet. She told him to get out and, fearful of what might happen next, threw a glass bottle at him. The bottle struck the appellant and caused him to bleed. The appellant then assaulted RB. He grabbed at her and pulled her singlet. The trial judge found that the appellant's intention was to expose her breasts and indecently assault her. His Honour also found that he formed that intention when he entered the home and saw RB alone. The appellant wrestled RB onto a couch in the lounge room. He hit RB in the face and caused her mouth to bleed. The appellant then dragged her by the dressing gown to her bedroom. In the bedroom the appellant was astride RB on the bed. His Honour found that the appellant intended to indecently assault her again. However, RB began screaming loudly and, as a result, the appellant desisted. He stole RB's wallet and left her home. RB's physical injuries comprised bruising to her body and scratches to her face.
Police arrested the appellant about twelve hours after he offended against RB.
The trial judge's sentencing remarks
The trial judge recounted the facts and circumstances of the offending in his sentencing remarks.
His Honour noted that, in addition to the objective seriousness of the offending, there were several aggravating factors. First, the appellant had been released from prison after having completed a term of imprisonment only three days before he committed count 1. He was not on parole at the time. Secondly, the appellant was on bail for the offences the subject of counts 1 and 2 when he committed the offences the subject of counts 3, 4, 5, 6 and 7. Thirdly, there was a degree of persistence in relation to the offending the subject of counts 1 and 2. Fourthly, there was violence in the commission of the offence the subject of count 3 in that the appellant smashed his way into the premises. Fifthly, the appellant's criminal conduct in relation to count 4 was brazen in that he crept through the house while the occupants were asleep. Sixthly, there was a degree of persistence in the appellant's assault of RB.
The trial judge noted that he had seen and heard each of the victims of the appellant's offending give evidence at his trial. There was no doubt that the offences involving RB were particularly traumatic for her. She now suffers a great deal of fear. After the offending she lived for some time with her husband's relatives because he is a fly in/fly out worker and RB felt unable to return to their home. His Honour found that all of the victims whose homes the appellant had entered would have felt 'violated by [the appellant] and less safe as a result [of the offending]' (ts 778).
The information before his Honour included a psychological report dated 29 July 2018 from Ms Tanina Oliveri, a clinical and forensic psychologist, and a pre-sentence report dated 8 August 2018.
The appellant was born on 30 November 1971. He was aged 44 at the time of the offending and was 46 when sentenced. He is single and has spent most of his adult life in prison. The appellant's parents separated prior to his birth and he has never met his father. He was placed in foster care at a very young age and was later adopted by his foster parents.
The appellant's adoptive parents were caring and supportive, but the appellant always felt out of place. He was the victim of sexual abuse between the ages of five and eight. Unsurprisingly, he exhibited behavioural problems from a young age. The appellant completed his schooling at about the age of 16. At about that time, he met his biological mother and began living with her.
After ceasing to live with his adoptive parents and beginning to live with his biological mother, the appellant commenced drinking alcohol and using cannabis. By the age of 20 he was also using amphetamine intravenously and heroin. Some of his offending has been a result of his illicit substance abuse.
The appellant has not had any long term relationships. However, he has a 20-year-old daughter from a brief union. The appellant was unaware that he had a daughter until about a year before he was sentenced. He has never met or communicated with her.
The trial judge noted that the appellant's mental health had been 'poor', but his Honour was not satisfied that the appellant's mental health was a contributing or causal factor in relation to the offences in question. The appellant has a history of schizophrenia, which has previously been treated within the prison system by the prescription of anti-psychotic medication. The appellant has a history of attempted suicide and depression, but he was not then at a risk of self-harm.
His Honour observed that the appellant continued to deny that he had committed the offences in question. The appellant has a history of refusing to accept responsibility for his offending and a tendency to externalise blame. As a result, he was, when sentenced, resistant to treatment and unwilling to engage in programs. The appellant had not shown any remorse for his offending.
The appellant is Aboriginal. His Honour accepted that, in the case of Aboriginal offenders, risk assessment tools used by psychologists must be approached with a degree of caution. However, his Honour said that he had formed his own view, independently of the tests administered by Ms Oliveri, about the appellant's risk of reoffending. His Honour found that the appellant was at a high risk of reoffending in a sexual manner if he continued to resist treatment and made no progress in dealing with the many issues underlying his sexual offending.
His Honour noted that the appellant had a previous conviction for very similar offending behaviour to the offending behaviour the subject of counts 5 and 6. The facts and circumstances of the previous conviction were these. On 22 July 2012, the appellant knocked on the door of a house. A 17-year-old girl refused to admit the appellant to the house. She did not know him. The appellant ripped open the door, went inside and demanded money. The girl told the appellant that she had no money. The appellant picked the girl up and placed her on a bed. He then lay on top of her, grabbed her pyjama pants and touched her breasts and genitals. He also kissed her on the mouth. When the girl struggled the appellant moved to search the house for money. The girl ran away and sought help. Police arrived and arrested the appellant. On 30 July 2013, the appellant was sentenced to 4 years' immediate imprisonment. He served the full sentence. The appellant was released three days before he committed counts 1 and 2.
The trial judge said that there were 'really no mitigating factors' apart from 'what little residual mitigation remains because of [the appellant's] personal circumstances' (ts 780).
The ground of appeal: the appellant's submissions
The appellant contended in his written submissions that the total effective sentence of 10 years' imprisonment was not proportionate to the gravity of his offences having regard to all the objective circumstances of the offending.
It was submitted that previous cases involving sentencing for multiple counts of burglary and aggravated burglary 'differ markedly' and that none were truly comparable to the present case.
The appellant suggested that the 'limited number of cases' referred to in his written submissions 'may not provide an adequate foundation for discerning or identifying patterns of sentences customarily imposed'.
However, it was contended that the total effective sentence imposed on the appellant infringed the first limb of the totality principle 'in particular given that, although persistent, the separate offences were individually at a relatively low level for offences of the type that were, ultimately, dealt with in the one sentencing exercise'.
At the hearing of the application for leave to appeal, counsel for the appellant, in addition to relying on the written submissions, emphasised two points. First, there was some mitigation in relation to the appellant's upbringing, including the sexual abuse he suffered as a young child. Secondly, the appellant is 'institutionalised' in that he finds it 'very difficult to fit into ordinary social type situations and fit into the mainstream of society' upon release from custody and, consequently, the appellant is 'less culpable … than someone who is well-adjusted to normal society' (appeal ts 3).
The ground of appeal: its merits
The maximum penalty for the offence the subject of count 1 is 10 years' imprisonment. The maximum penalty for each of the offences the subject of counts 2, 3, 4 and 5 is 20 years' imprisonment. The maximum penalty for each of the offences the subject of counts 6 and 7 is 7 years' imprisonment.
The appellant does not challenge any of the individual sentences. His sole challenge is to the total effective sentence.
The appellant does not allege that the trial judge made any express error either in his fact-finding for the purposes of sentencing or otherwise.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[1] Also, the severity or leniency of an individual sentence (which is nevertheless within the 'available range' of sentences) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia;[2] Gaskell v The State of Western Australia.[3]
[1] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[2] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[3] Gaskell v The State of Western Australia [2018] WASCA 8 [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
The primary sentencing considerations for offences of the kind committed by the appellant are appropriate punishment of the offender and personal and general deterrence.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia;[4] The State of Western Australia v Doyle.[5]
[4] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] ‑ [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[5] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
Similarly, if, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance.
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge‑made law. See Barbaro v The Queen.[6]
[6] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA). Part 2 div 1 comprises s 6 to s 9AA.
By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
In Munda, French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ distinguished between an offender's moral culpability, on the one hand, and the objective seriousness of his or her offending, on the other:
The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant's offending [57].
In Bugmy v The Queen,[7] French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ observed:
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 … 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 (Veen v The Queen [No 2] (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ; [1988] HCA 14). 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 [44].
[7] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 [44].
In Veen v The Queen [No 2],[8] Mason CJ, Brennan, Dawson and Toohey JJ explained that a relevant sentencing factor (for example, a mental abnormality which makes an offender a danger to society when he or she is at large, but diminishes his or her moral culpability for a particular offence) has two countervailing effects: one which tends towards a longer custodial term of imprisonment and the other which tends towards a shorter term.
[8] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 476 - 477.
In the present case, the appellant's offending was very serious. The egregious nature of his offending is readily apparent from the facts and circumstances of his offending behaviour and the aggravating factors noted in the trial judge's sentencing remarks.
The appellant was, of course, entitled to proceed to trial, but he was unable to claim the mitigation that pleas of guilty would have brought.
The appellant was aged 44 when he committed the offences. He was not youthful or inexperienced for sentencing purposes.
The appellant has a serious and extensive criminal record. As his Honour noted, the appellant has spent most of his adult life in prison. The appellant's prior criminal record, and any failure of previous sentences to achieve the purpose for which they were imposed, did not aggravate the offending in question, but his record demonstrated that he was not of good character. Further, the previous offence referred to by his Honour in his sentencing remarks underscored the importance of personal deterrence and the protection of the community.
The appellant maintains his stance of denial in relation to the offending. He has not accepted responsibility for his criminal conduct and he has not evinced any remorse or victim empathy.
The continuing effects of the appellant's childhood deprivation and the sexual abuse he suffered as a young child diminish his moral culpability. However, the appellant's behaviour makes him a danger to women. It was necessary for those countervailing effects to be assessed and weighed in the sentencing process.
The appellant is at a high risk of reoffending in a sexual manner if he continues to resist treatment and makes no progress in dealing with the issues which underpin his sexual offending. His prospects of rehabilitation are not encouraging.
We have had regard to the cases cited by counsel for the appellant. However, it is apparent that none of the cases cited, and none of the other cases we have examined, are truly comparable to the appellant's overall offending.
There is no mitigation apart from the appellant's reduced culpability consequent upon the significant deprivation and abuse he suffered as a child and the lingering impact that deprivation and abuse has had upon his functioning as an adult. We accept that his inability to fit into the mainstream of society upon release from custody is to some extent attributable to that lingering impact and is therefore mitigating. However, his alleged 'institutionalisation' consequent upon his repeated imprisonment is not, of itself, mitigating.
Although counts 1 and 2 were committed in close temporal proximity, and counts 3, 4, 5, 6 and 7 were also committed in close temporal proximity, it was necessary to accumulate some of the individual sentences in order to ensure that the total effective sentence imposed on the appellant was commensurate with the seriousness of his overall offending.
In our opinion, the total effective sentence of 10 years' imprisonment did not infringe the first limb of the totality principle. A custodial term of that length was required in order properly to mark the very serious character of the appellant's offending as a whole, and to give effect to the sentencing considerations of appropriate punishment and personal and general deterrence. The total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the overall offending, the vulnerability of the victims (especially RB), the pattern of sentencing in prior cases with some comparable features, and the limited mitigation.
It is not reasonably arguable that error by his Honour in the exercise of his discretion should be inferred, based on the first limb of the totality principle, from the sentencing outcome. The total effective sentence of 10 years' imprisonment was not unreasonable or plainly unjust.
The ground of appeal is without merit.
Conclusion
The ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KL
Associate to the Honourable Justice Buss19 FEBRUARY 2019
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