Moran v R

[2022] NSWCCA 217

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Moran v R [2022] NSWCCA 217

Hearing dates:

21 September 2022

Date of orders:

5 October 2022

Decision date:

05 October 2022

Before:

Beech-Jones CJ at CL at [1]
Price J at [41]
Yehia J at [42]

Decision:

(1)   The applicant be granted an extension of time to apply for leave to appeal against the sentence imposed on him by Harris DCJ on 12 March 2020 up to and including 9 June 2022;

(2)   The applicant be granted leave to appeal against the sentence imposed on him by Harris DCJ on 12 March 2020 and the sentence imposed on him by Buscombe DCJ on 29 January 2021; and

(3)   The appeals in both matters be dismissed.

Catchwords:

SENTENCING – parity – no question of principle

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Court Act 1998 (NSW)

Cases Cited:

Cameron v R [2017] NSWCCA 229

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

DS v R [2014] NSWCCA 267

Kellyv R [2017] NSWCCA 256

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Martellotta v R [2021] NSWCCA 168

Miles v R [2017] NSWCCA 266

Category:

Principal judgment

Parties:

Jarrod Eric Moran (Applicant)
Rex (Respondent)

Representation:

Counsel:
T Woods (Applicant)
D Scully (Respondent)

Solicitors:
Kiki Kyriakou Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2019/74045, 2019/229443

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

12 March 2020

Before:

Harris DCJ, Buscombe DCJ

File Number(s):

2019/74045, 2019/229443

JUDGMENT

1. BEECH-JONES CJ at CL: This matter involves two applications for leave to appeal against sentences imposed for two kidnapping offences. With both applications, the sole ground of appeal is that there is a lack of parity between the two sentences imposed on the applicant and an aggregate sentence imposed on a co-offender, James Veatufunga (“Veatufunga”), for three offences, two of which were the same offences committed by the applicant.

2. For the reasons that follow I do not accept that the sentence imposed on Veatufunga gives rise to a justifiable sense of grievance on the part of the applicant. I would grant the applicant an extension of time to bring the applications and leave to appeal but I would dismiss the appeal.

Background

3. On 12 March 2020, the applicant was sentenced by her Honour Judge Harris as a consequence of his pleading guilty to a charge that he did on 14 November 2018 take and detain Wayne Grima with intent to obtain an advantage while being in company with others, including Veatufunga, and cause actual bodily harm to Mr Grima contrary to s 86(3) of the Crimes Act 1900 (NSW) (the “Grima offence”). The maximum penalty for the offence is 25 years’ imprisonment and there is no standard non-parole period. Her Honour sentenced the applicant to imprisonment for 6 years commencing on 12 March 2019 and expiring on 11 March 2025 with a non‑parole period of 4 years expiring on 11 March 2023.

4. On 29 January 2021, the applicant was sentenced by his Honour Judge Buscombe after pleading guilty to a charge that he did on 30 April 2018 detain Shaynaya Fitzpatrick with the intention of obtaining an advantage, namely information relating to Paul Fitzpatrick, while he was in the company of others, including Veatufunga, contrary to s 86(2)(a) of the Crimes Act (the “Fitzpatrick offence”). The maximum penalty for an offence under s 86(2)(a) is 20 years’ imprisonment. His Honour sentenced the applicant to imprisonment for 2 years and 10 months commencing 12 March 2022 and expiring on 11 January 2025 with a non-parole period of 1 year and 6 months expiring on 11 September 2023. His Honour also made an order under s 18B of the Drug Court Act 1998 (NSW) referring the applicant to the Drug Court to determine whether he should be subject to a Compulsory Drug Treatment Order.

5. The combined effect of the two sentences imposed on the applicant is that he will serve a total sentence of 6 years’ imprisonment commencing 12 March 2019 and expiring on 11 March 2025 and a non-parole period of 4 years and 6 months expiring on 11 September 2023.

6. On 29 January 2021, Judge Buscombe imposed a sentence on Veatufunga for three offences to which Veatufunga pleaded guilty namely the Grima offence, the Fitzpatrick offence and an offence of intentionally damaging a dwelling house by fire contrary to s 195(1A) of the Crimes Act. The maximum penalty for an offence under s 195(1A) is 11 years’ imprisonment. His Honour imposed an aggregate sentence of imprisonment for 7 years and 6 months with a non‑parole period of 5 years. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “Sentencing Act”), his Honour specified an indicative sentence of 6 years’ imprisonment for the Grima offence, 2 years and 6 months’ imprisonment for the Fitzpatrick offence and 3 years and 6 months’ imprisonment for the arson offence.

Judge Harris’ Sentencing of the Applicant for the Grima Offence

7. In her sentencing judgment, Judge Harris summarised the effect of an agreed statement of facts concerning the applicant and the Grima offence. An agreed statement of facts was also provided to Judge Buscombe in relation to Veatufunga’s commission of the Grima offence. Shortly after the hearing of this application the parties filed a joint note identifying the differences between the two sets of agreed facts but recording their agreement that the differences were not material.

8. The effect of the agreed statement as summarised by Judge Harris was that at around 10pm on 14 November 2018 Mr Grima was set upon in his home garage by five assailants including the applicant and Veatufunga. He was pulled outside his garage and attempted to escape before one of the other three assailants struck him just above the knee with a machete causing “a significant gaping wound” and blood loss. Mr Grima was then dragged to a sedan parked in the street and forced in by the applicant. He was placed in the rear seat in the middle. The other three offenders then drove Mr Grima in the sedan. The applicant and Veatufunga drove in the applicant’s Range Rover in the same direction. Mr Grima was forced to put his head between his knees and was driven for about 15 minutes to a secluded rural area and abandoned. At around 11pm passers‑by heard his cry for help and he was ultimately conveyed by ambulance to a hospital.

9. Mr Grima was hospitalised for six days. He underwent surgery to reattach muscles and tendons. After his release, he underwent physiotherapy to regain muscle strength and mobility. However, he was left with a “large permanent and possibly disfiguring scar”, muscle atrophy, possible permanent restriction on knee flexion, sensory loss and he may develop neuroma.

10. The applicant was stopped in his vehicle on the night of the kidnapping and arrested. He was released pending a DNA assessment of his clothing which later revealed the presence of Mr Grima’s DNA. He was arrested on 12 March 2019 and has been in custody since.

11. The applicant gave evidence at the sentence hearing before her Honour stating that he participated in the kidnapping to extinguish a drug debt of $1,000. He also said he was only instructed to hit or slap the victim, that he was unaware of the presence of his co-offenders until he was on Mr Grima’s property and he told the offender who wielded the machete that, inter alia, “[t]his was not meant to happen.” Her Honour rejected that evidence. Her Honour was satisfied beyond reasonable doubt that the applicant and the co-offenders “were at all times acting in concert and upon an agreement that the victim was to be kidnapped.” However, her Honour was not satisfied beyond reasonable doubt that the offender had prior knowledge that a machete was to be brought to the scene.

12. Her Honour did not accept that the applicant’s moral culpability was reduced on account of any duress. Her Honour considered the circumstances of the kidnapping and found that it fell into the “middle range of objective seriousness” for offences of this kind.

13. Her Honour allowed a discount of 25% on account of the applicant’s plea of guilty. The applicant was 21 years of age at the time of sentencing. His criminal record was described by her Honour as “limited to Children’s Court matters for which he received either a bond or caution” and, as an adult, driving offences and an offence of possession of a prohibited drug. Her Honour allowed the applicant “a degree of leniency for the absence of any significant criminal history.” However, the applicant was subject to a Conditional Release Order, which was imposed on 25 October 2018 for the offence of possess prohibited drug. Thus, her Honour found that the aggravating factor in s 21A(2)(j) of the Sentencing Act was established; ie the Grima offence was committed while the applicant was on conditional liberty.

14. In relation to his subjective case, her Honour noted that the applicant’s early development was unremarkable. He left school in Year 10 and had commenced a scaffolding business about four months prior to his arrest. A consultant psychiatrist’s report noted that he had some history of attention deficit hyperactivity disorder and oppositional defiant disorder but concluded that the “likely diagnosis was borderline personality disorder.” Her Honour found that the applicant was genuinely remorseful and that he had “at least very recently, demonstrated that he is capable of reliability and responsibility” although his “rehabilitation will ultimately come down to his own determination to succeed”. As reflected in the sentence that was imposed, her Honour found special circumstances based upon the need for the applicant to “undergo long-term supervision and treatment … to address not only his drug use but to monitor and manage his behavioural disorder”.

Judge Buscombe’s Sentencing of the Applicant for the Fitzpatrick Offence

15. Judge Buscombe was provided with an agreed statement of facts for the Fitzpatrick offence relating to the applicant. The note filed by the parties after the hearing also described the differences between that statement and the agreed statement filed in relation to Veatufunga’s commission of the Fitzpatrick offence. There were differences between the two sets of facts which are potentially material. They are noted below.

16. The effect of the agreed facts concerning the applicant and the Fitzpatrick offence was summarised by Judge Buscombe as follows. On 23 April 2018 Ms Fitzpatrick was approached by her friend and neighbour , Mr Ryan, and one of his friends who were trying to contact her uncle, Paul. She made some inquiries but advised Mr Ryan that her uncle was not interested in meeting him. It seems that Mr Ryan had been approached by associates of the applicant who were seeking to contact Ms Fitzpatrick’s uncle. On 26 April 2018 the applicant contacted Mr Ryan and went to his house. Four days later, on 30 April 2018 the applicant, Veatufunga and two co-offenders travelled to Mr Ryan’s house. The applicant spoke to Mr Ryan before they both walked to the victim’s grandmother’s place nearby. Ms Fitzpatrick was inside and came out to see Mr Ryan and was introduced to the applicant. The applicant said, “I’m a friend of [Mr Ryan’s], just tell us where the money is and we’ll give you a big cut of it.” Ms Fitzpatrick denied knowing where any money was but said that even if she did know she would not tell them.

17. The applicant and Ms Fitzpatrick continued to talk before she turned around and started walking towards the house. The applicant grabbed her arms, covered her mouth and pulled her towards a utility motor vehicle. Mr Ryan and Veatufunga assisted the applicant in forcing a struggling Ms Fitzpatrick into the back of the vehicle. Eventually she was forced into the middle seat in the rear of the vehicle with the applicant and Veatufunga on either side of her. Veatufunga pushed her head down as they drove. The offenders kept asking her “[w]here’s Paul’s money”. They drove for around 20 to 25 minutes before pulling off the highway onto a dark driveway. When the vehicle stopped, the victim was pushed out. The offenders told her that they believed she did not know where her uncle’s money was but asked her to show them where he lived. She told the offenders she did not know where her uncle lived. They got back into the vehicle and drove back towards Ms Fitzpatrick’s grandmother’s house. They stopped close to the victim’s home before dropping her off and driving away. His Honour noted that the victim was crying and terrified. His Honour assessed the offence as being “below the mid-range of objective seriousness, but clearly not at the bottom of the range.”

18. His Honour described the personal circumstances and subjective case of the applicant in terms that are not relevantly different to Judge Harris’ description when sentencing the applicant for the Grima offence, although two matters should be noted. First, in light of the applicant’s commission of the Grima offence, his Honour found that the commission of the Fitzpatrick offence could not be seen as an “uncharacteristic aberration” and his criminal record “disentitles him to significant leniency”. Second, his Honour addressed whether the psychiatric diagnoses noted above were causative of the Fitzpatrick offence and concluded that it was “appropriate to reduce the need to fully reflect general deterrence in his sentence given his mental health”, although that objective of sentencing still needed to be reflected in the sentence.

19. His Honour allowed a 25% discount on account of his plea of guilty. His Honour found that the applicant’s remorse is “somewhat limited” and that “[o]n balance and, in particular, given his relative youth … he has reasonable prospects or rehabilitation”. His Honour concluded that some cumulation on the sentence imposed by Judge Harris was appropriate and addressed parity in relation to two co-offenders who had already been sentenced, neither of which were Veatufunga.

Veatufunga’s Sentencing Judgment

20. Judge Buscombe delivered Veatufunga’s sentencing judgment after sentencing the applicant for the Fitzpatrick offence. His Honour described the facts of the Fitzpatrick offence and the Grima offence in terms that are not materially different to that set out above. That said, as noted there were some differences between the agreed facts for the respective offences. In relation to the Fitzpatrick offence, the parties disputed whether the differences were material. The agreed facts concerning Veatufunga attribute to the applicant the words “[w]hat if we kidnap you” and to Ms Fitzpatrick the words “[e]ven if I did know where such money was, I wouldn’t tell you anyway.”

21. His Honour assessed each of the Grima offence and the Fitzpatrick offence as having the same objective seriousness to that set out above, i.e., the Fitzpatrick offence was “below the mid-range of objective seriousness, but clearly not at the bottom of the range” and the Grima offence fell within the mid-range of objective seriousness.

22. The arson offence was committed in the early hours of 25 February 2018 and involved Veatufunga and an unknown offender setting fire to a car parked under a carport attached to a house. They returned in the early hours of 26 February 2018 and ignited a fire at a “granny flat” attached to the house. Judge Buscombe assessed this offence to be “well within the mid-range of objective seriousness”.

23. His Honour then addressed Veatufunga’s subjective case. His Honour noted that, at the time of sentencing, Veatufunga was 22 years of age and this engaged the principles applicable to sentencing young adult offenders. His Honour noted that in May 2018, when Veatufunga was 18 years of age, he was sentenced to an Intensive Correction Order (“ICO”) for two offences of robbery in company. The arson offence and the Fitzpatrick offence were committed while Veatufunga was on bail for the robbery offences and the Grima offence was committed while he was serving the ICO. His Honour found that the “fact that all three serious offences were committed while on conditional liberty of some form is an aggravating factor on sentence.”

24. His Honour found that Veatufunga had a proper and appropriate upbringing. He left school in Year 11 and began work as a labourer but prior to being placed in custody he was unemployed. His Honour accepted that the offences were committed to fund a drug habit. His Honour noted that Veatufunga had written a letter of remorse but made no express finding as to whether he was remorseful. His Honour found that “his prospects of rehabilitation are guarded” although his Honour made a finding of special circumstances to facilitate Veatufunga’s drug habit being addressed upon his release.

25. His Honour then addressed parity between the applicant and all the co-offenders in some detail. In relation to the Fitzpatrick offence, his Honour found that Veatufunga’s role was greater than the other co-offenders “but not as great as Mr Moran’s”. His Honour noted that Veatufunga did not have a “mental health issue” unlike the co-offenders, including the applicant. His Honour concluded that the sentence that should be imposed “will be less than that which I imposed on Mr Moran” but more than that imposed on one of the other co-offenders. So far as the Grima offence is concerned, his Honour stated:

“In relation to the detention offence concerning Mr Grima, the co-offender Mr Moran was sentenced by Judge Harris on 12 March 2020. Her Honour, like me, considered the offence to be one within the mid-range of objective seriousness. Her Honour noted that Mr Moran was only 20 years of age at the time and had certain mental health issues. Her Honour considered that Mr Moran had some prospects of rehabilitation. Her Honour allowed Mr Moran a 25% discount of his sentence for the plea of guilty. Her Honour imposed a sentence of six years imprisonment with a non-parole period of four years.

Mr Moran and this offender’s subjective cases are somewhat similar, although this offender was on conditional liberty at the time of the offence and does not have the mental health issues that Mr Moran has. I am unable on the facts before me to really differentiate between their roles in this particular offence. I consider in these circumstances it is appropriate to impose a sentence on this offender for this offence which is similar to that imposed by Judge Harris on Mr Moran.”

The Appeal: Parity

26. As noted, the sole ground of appeal is that the applicant has a justifiable sense of grievance as a result of the aggregate sentence imposed on Veatufunga by Judge Buscombe on 29 January 2019.

27. This ground of appeal invokes the parity principle. The parity principle holds that there should not be a disparity, or a “marked disparity”, between the sentences imposed on co-offenders such as to give rise to “a justifiable sense of grievance” in one of them (Lowe v The Queen (1984) 154 CLR 606 at 610 per Gibbs CJ, with whom Wilson J agreed at 616, at 612 to 613 per Mason J, and at 623 per Dawson J; [1984] HCA 46).

28. In DS v R [2014] NSWCCA 267 (“DS”) at [39] the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted as follows:

“The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be ‘gross’, ‘marked’ or ‘glaring’.”

29. Counsel for the applicant relied on the statement of Leeming JA in Miles v R [2017] NSWCCA 266 at [9] in which his Honour endorsed the analysis of Hamill J in Cameron v R [2017] NSWCCA 229 at [79]-[90] to the effect that it is wrong to require that the disparity be “gross, marked or glaring”. It is not necessary in this case to resolve that debate. It suffices to note that, on any view of the authorities, merely pointing to some difference between the two subjective cases of co-offenders who committed the same crime and received the same sentence would not of itself establish a justifiable sense of grievance. Ultimately, this area of discourse is directed to determining whether or not the sentencing discretion miscarried and not whether or not this Court would have imposed a different sentence to that imposed at first instance.

30. In addressing a parity ground in circumstances such as these, it is important to note that this is not an appeal from the sentence imposed on the co-offender or a means to attack the reasons and findings in support of that sentence. Thus, in Martellotta v R [2021] NSWCCA 168 Adamson J observed (at [58]):

“… where the co-offenders were sentenced by different judges, a further question arises as to whether the two sentences can be explained by reference to the different material before each sentencing judge. In order to answer that question, it is necessary to address the material before each judge and the assessment by each of that material as reflected in their respective reasons.”

31. In the context of this case, the application of this passage means that care needs to be taken in considering the above passage from the judgment of Judge Buscombe in sentencing Veatufunga which distinguishes between the mental health issues affecting the applicant and the absence of any such issues affecting Veatufunga. As noted, Judge Harris received a psychiatrist’s report and, in determining to make a finding of special circumstances, accepted that the applicant had a behavioural disorder. However, before Judge Harris, his counsel expressly disclaimed any reliance on that report as a basis to invoke the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) concerning the circumstances in which general deterrence is ameliorated for offenders with mental illness. In contrast, in sentencing the applicant for the Fitzpatrick offence Judge Buscombe found that general deterrence was diminished by his mental health issues.

32. The applicant’s written submissions traversed the various differences between the findings in each case, although at times they elided the differences between the findings made by Judge Harris and Judge Buscombe about the applicant when sentencing him for the Grima offence and the Fitzpatrick offence, whereas the comparison must be between each of those sets of findings and the findings concerning Veatufunga for the same offence. However, in oral submissions the applicant’s counsel focussed on the correct comparators. In relation to the Grima offence, counsel identified the findings of Judge Harris about the applicant’s (i) remorse; (ii) prospects of rehabilitation; (iii) his criminal record; and (iv) his mental health and compared them to Judge Buscombe’s findings about Veatufunga on the same topic. With the Fitzpatrick offence, counsel identified the findings by Judge Buscombe in the applicant’s and Veatufunga’s cases on the same topics as well as the fact that Veatufunga committed the offence while on conditional liberty.

33. In relation to the Grima offence, no finding of remorse was made in Veatufunga’s case, whereas Judge Harris found that the applicant was genuinely remorseful. Judge Harris’ finding as to the applicant’s prospects of rehabilitation was marginally better compared to the finding made by Judge Buscombe in relation to Veatufunga. Judge Harris found that the applicant “at least very recently, demonstrated that he is capable of reliability and responsibility” although that was limited because it depended on “his own determination to succeed”. Judge Buscombe found that Veatufunga’s prospects of rehabilitation were “guarded”. Veatufunga’s criminal record was also (marginally) worse than the applicant’s record. Judge Harris accepted that the applicant had a “behavioural disorder” but given the disclaimer of reliance on De La Rosa that was treated as only relevant to a finding of special circumstances. That is irrelevant to this ground of appeal which concerns a comparison between the total sentence imposed on the applicant for the Grima offence and the indicative sentence for Veatufunga.

34. The relevant sentences for both the applicant and Veatufunga were the same, namely 6 years’ imprisonment. The findings of objective seriousness were the same and, as just noted, there was no finding that the applicant’s mental health issues warranted any amelioration of general deterrence. Both the applicant and Veatufunga committed the Grima offence while on conditional liberty. They were both approximately the same age and the principles applicable to sentencing young adult offenders were equally applicable to both.

35. In the end result the difference between the two cases in relation to the Grima offence reduces to the marginally more favourable findings made in favour of the applicant concerning remorse and prospects of rehabilitation as well as the marginally better criminal record possessed by the applicant compared to Veatufunga. However, in this case it was the seriousness of the offending that predominated in the sentencing exercise. Given the seriousness of the offending involved in the Grima offence, I do not consider that a justifiable sense of grievance arises from the imposition of the same sentence on each of the applicant and Veatufunga for the Grima offence.

36. With the Fitzpatrick offence, the sentence imposed on the applicant exceeded that imposed on Veatufunga by four months. The applicant’s written submissions conceded that the sentence imposed on Veatufunga was only “marginally less severe” than the sentence imposed on the applicant. Judge Buscombe differentiated between the applicant’s and Veatufunga’s roles in the Fitzpatrick offence, finding that Veatufunga’s role was not as great as that of the applicant. Against this was Judge Buscombe’s finding that, in the applicant’s case, general deterrence was diminished on account of his mental health issues and the other differences noted by the applicants’ counsel. The applicant’s written submissions contended that the “differences in the roles played by participants in a joint criminal enterprise can only go so far on sentence” and “there was no difference in their roles that could properly justify any difference in penalty”. I disagree. A difference in the roles played in a kidnapping is exactly the type of difference that could justify a difference in penalty. It has more cogency than, say, marginal differences between findings of remorse and prospects of rehabilitation. In this case, those differences justified an even greater difference in the term of imprisonment but that was offset by the differences between the findings Judge Buscombe made in relation to each of the applicant’s and Veatufunga’s cases in relation to their respective mental health issues and the other matters relied on.

37. I do not consider that a justifiable sense of grievance arises from the imposition of marginally different sentences for the Fitzpatrick offences.

38. For the sake of completeness, I note that there was no substantive difference in the application of the totality principle in each of the applicant’s and Veatufunga’s cases (Kelly v R [2017] NSWCCA 256). The net effect of the sentence imposed on the applicant for the Fitzpatrick offence was to only increase his non-parole period by six months. In the circumstances that was relatively lenient.

Extension of Time

39. The applications for leave to appeal against both sentences were filed on 9 June 2022. The applicant needed an extension of time to appeal from the sentence imposed by Judge Harris. The applicant swore an affidavit in July 2021 explaining the difficulties he had with his legal representatives in the first half of 2021. Although there was no explanation for his inaction after that point, the application for an extension of time was not opposed by the Crown. I would grant the extension.

Proposed Orders

40. I propose the following orders:

1. The applicant be granted an extension of time to apply for leave to appeal against the sentence imposed on him by Harris DCJ on 12 March 2020 up to and including 9 June 2022;

2. The applicant be granted leave to appeal against the sentence imposed on him by Harris DCJ on 12 March 2020 and the sentence imposed on him by Buscombe DCJ on 29 January 2021; and

3. The appeals in both matters be dismissed.

   41. PRICE J: I agree with Beech-Jones CJ at CL.

   42. YEHIA J: I agree with Beech-Jones CJ at CL.

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Amendments

05 October 2022 - [36] - minor typographical error corrected.

Decision last updated: 05 October 2022