Peake v The State of Western Australia - [2015] WASCA 239

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PEAKE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 239

CORAM: BUSS JA
MAZZA JA

HEARD: 5 NOVEMBER 2015

DELIVERED : 27 NOVEMBER 2015

FILE NO/S: CACR 146 of 2015

BETWEEN: RYAN KEITH PEAKE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :PETRUSA DCJ
File No  :IND 43 of 2015

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial on one count of unlawfully doing grievous bodily harm - Sentence of 3 years' immediate imprisonment - Whether open to the trial judge to backdate the sentence - Proper construction and application of s 87 of the Sentencing Act 1995 (WA) - Manifest excess

Legislation:

Criminal Code (WA), s 297(1)
Sentencing Act 1995 (WA), s 39(3), s 87

Result:

Leave to amend the appellant's case granted
Application for an urgent appeal order dismissed
Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: No appearance

Solicitors:

Appellant: Gary Rodgers, Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Ellis v The State of Western Australia [2013] WASCA 220
Hunter‑Aragu v The State of Western Australia [2015] WASCA 80
King v The Queen [2001] WASCA 198
Narkle v Hamilton [2008] WASCA 31
Palmer v The Queen [1999] WASCA 253
R v Jones (Unreported, WASC, Library No 970210, 7 May 1997)
The State of Western Australia v Ghilardi [2015] WASCA 61
Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642

BUSS JA: The appellant has applied for leave to appeal against sentence.
On 24 July 2015, after a trial in the District Court before Petrusa DCJ and a jury, the appellant was convicted on one count in an indictment.
The count alleged that on 20 April 2014, at Perth, the appellant unlawfully did grievous bodily harm to Clayton Lee French, contrary to s 297(1) of the Criminal Code (WA) (the Code).
On 24 July 2015, her Honour remanded the appellant in custody in connection with that offence.
On 31 July 2015, the trial judge sentenced the appellant to 3 years' immediate imprisonment. The sentence was backdated to 24 July 2015. A parole eligibility order was made.
By an application in the appeal filed on 29 October 2015, the appellant applied for an urgent appeal order.

The facts and circumstances of the offending

On the night of Saturday, 19 April 2014, a young woman and her flatmate held a joint birthday party at their Scarborough home. The function was attended by between 15 and 30 people.
At about 11.00 or 11.30 pm, a group of about 10 people who were at the birthday party decided to visit a nightclub in Perth city. The group went to the nightclub and remained there until about 2.00 am. They then began to walk from Perth city to Northbridge.
At the intersection of Wellington Street and William Street, the group who had attended the birthday party encountered the appellant and a number of his friends. The appellant's group was also walking towards Northbridge.
At the intersection there was a negative exchange between members of the appellant's group and members of the other group. Ben McConnell, who had been at the birthday party, recognised the appellant and spoke to him. The contact between Mr McConnell and the appellant diminished the antagonism between the groups.
Some of the people who had attended the birthday party crossed the intersection. As they did so, a person who appeared to be a member of the appellant's group called out, 'Do you have any sluts that want to fuck us?'.
Mr McConnell spoke to the appellant about the offensive remark apparently made by a member of the appellant's group. The appellant was annoyed by Mr McConnell's suggestion that a member of the appellant's group had made the remark. The victim was not involved in this conversation but he was standing nearby.
The appellant then, without warning and without any provocation, struck the victim to the head with a clenched fist. It was a very forceful blow. Those who witnessed the appellant's action variously described the blow as causing the victim to lose consciousness immediately, to fall without time to react and to step backwards and spin 180 degrees before falling forward. In any event, the victim fell, unprotected, into a metal meter control box that was about 2 or 3 m from the place where he had been standing.
The victim was about 5 foot 7 inches tall and weighed 78 kg. The appellant was 6 foot tall and weighed 120 kg. The victim was aged 32 and the appellant was 21.
The appellant left the crime scene immediately. He did not make inquiry about the victim's welfare or endeavour to obtain assistance for him.

The victim's physical injuries

The victim was taken to Royal Perth Hospital. He suffered a significant scalp laceration when he hit his head against the metal meter control box. A CT scan of the victim's head and neck revealed a large left‑sided extra cranial haematoma. There were no associated fractures. He was given intravenous fluids and antibiotics. On the evening of 21 April 2014, the victim was taken to theatre for exploratory surgery and closure of the scalp laceration. The surgeon located a large curvilinear laceration extending from the left temple into the parietal scalp. There was a blood clot underneath the skin consistent with a partial laceration to the superficial temporal artery. The artery was tied off, the haematoma evacuated and the wound cleaned. The surgeon inserted a drain and closed the wound using sutures. The victim was discharged from hospital on 22 April 2014. He returned to the outpatient clinic on 24 April 2014 for removal of the drain. The victim's injuries were of such a nature as to endanger or be likely to endanger life. He suffered substantial bleeding. Without medical treatment, the ongoing blood loss could have led to a potentially life‑threatening situation. The victim has a significant permanent scar on his head, but he does not have any permanent physical disability.

The victim's psychological trauma

Although the victim has made a full physical recovery, he has suffered ongoing psychological trauma. When the appellant was sentenced, the victim was receiving treatment for post‑traumatic stress disorder, anxiety attacks and depression. He avoids public places. He has decided to leave Western Australia and relocate to a place closer to his family. The victim considers that this will facilitate his long‑term recovery. An adverse consequence of relocating is ceasing his well‑paid fly in/fly out employment in this State. The significant scar on his head is an enduring reminder for him of the night in question.

The trial judge's sentencing remarks

The trial judge recounted, in her sentencing remarks on 31 July 2015, the facts and circumstances of the offending and the physical injuries and psychological trauma suffered by the victim.
The appellant was aged 22 at the time of sentencing. He had a prior criminal record. Although her Honour characterised the record as 'minor', she noted that it included a previous offence of assault occasioning bodily harm. This involved an assault on a fellow patron at the Burswood Casino. The victim suffered a 3 cm cut to his head which required medical treatment.
The appellant had lived with his parents until he was incarcerated for the offence in question. They remain supportive of him.
The appellant left school at the age of 14. He was overweight and had been bullied. However, the appellant was a talented golfer. He pursued the sport and had some success playing in national and international tournaments. He intended to embark upon a professional golfing career. Unfortunately, at the age of 18 or 19, he suffered a shoulder injury. This precluded him from playing golf at an elite level. At about this time the appellant's coach and mentor died. The death, combined with the loss of his chosen career, affected the appellant adversely. His weight increased significantly. He was able to obtain employment as a greenkeeper/groundsman at two golf clubs.
The trial judge received correspondence from people who spoke well of the appellant, including his positive attitude towards and capacity for work.
Her Honour found that on the night of the offending the appellant did not demonstrate any remorse for his actions or any concern for the victim. She said, however, that more recently the appellant appeared to have gained an understanding of the impact of his offending on the victim and to have shown remorse. But her Honour found that at least some of the remorse stemmed from the appellant's realisation of the consequences for him of the offending. Nevertheless, she gave the appellant some credit, in the sentencing process, for remorse.
The trial judge said the offending in question was 'at the mid‑range of seriousness of offences of this kind' (ts 385). She was satisfied that in all the circumstances an immediate term of imprisonment was the only appropriate sentencing option.

The argument before the trial judge in relation to the backdating of the sentence

On 29 July 2015 (that is, two days before she imposed sentence), the trial judge heard argument from the prosecutor and the defence counsel about the extent to which she was empowered to backdate any sentence of imprisonment imposed on the appellant.
On 20 April 2014, the appellant was arrested and charged with the offence in question. He was released on bail. His bail was not (at least formally) revoked between 20 April 2014 and 31 July 2015 (when her Honour imposed sentence).
On 12 November 2014, the appellant was arrested and charged with another offence (the Second Charge) which he allegedly committed while he was on bail for the offence in question. The Second Charge alleges that the appellant, with intent to maim, disfigure or disable any person, unlawfully did grievous bodily harm to a person, contrary to s 294(1) of the Code. On 12 November 2014, the appellant was refused bail and remanded in custody on the Second Charge. See, generally, cl 3A of pt C of sch 1, and cl 1 of sch 2, to the Bail Act 1982 (WA). The appellant remained in custody between 12 November 2014 and 24 July 2015 (when her Honour remanded him in custody in connection with the offence in question).
After hearing argument on 29 July 2015, the trial judge decided that any backdating by her Honour of any sentence of imprisonment for the offence in question should be to 24 July 2015. She explained:
[The appellant has] been in custody for [the pending charge of unlawfully doing grievous bodily harm with intent] … [H]e will get credit for the time in custody if and when he's dealt with for that matter and in respect of this matter his time will be backdated to 24 July [2015] (ts 375).
The appellant has pleaded not guilty to the Second Charge. It is anticipated that in early to mid‑2016 he will be tried in the District Court on the Second Charge.

The proposed grounds of appeal

Initially, the appellant relied on one ground of appeal.
However, by an application in the appeal filed on 30 October 2015, the appellant applied for leave to amend his appellant's case. The amendments include the addition of another ground of appeal.
At the hearing of the application for leave to appeal, the court heard submissions from counsel for the appellant in relation to the initial ground and the proposed additional ground, on the basis that the court would reserve its decision on the application for leave to amend and would decide whether to grant leave to amend in its reasons for decision on the application for leave to appeal.
The proposed additional ground (which I will call ground 1) alleges that the trial judge erred when she determined that s 87 of the Sentencing Act 1995 (WA) had no bearing on the appellant's case, alternatively, she erred in the exercise of her inherent discretion in failing to take into account the prior time spent in custody.
The initial ground (which I will call ground 2) alleges that the sentence of 3 years' immediate imprisonment was, in all the circumstances, manifestly excessive.

The merits of proposed ground 1

The appellant's written submissions assert that:
(a)the trial judge should have backdated the sentence to 12 November 2014;
(b)if the sentence had been backdated and if the appellant is convicted on the Second Charge, he will not be entitled to 'any credit for the period [he spent in custody from] 12 November 2014 to 24 July 2015' in being sentenced for the Second Charge;
(c)if the sentence is not backdated and if the appellant is acquitted on the Second Charge, 'he will lose any credit for the period … he spent [in custody] from 12 November 2014 to 24 July 2015'; and
(d)her Honour 'did not fail to backdate because she otherwise determined it would be inappropriate to do so', but because of her erroneous view that 'she couldn't … contrary to what the Court held in Narkle v Hamilton … at [30]'.
At the hearing before this court, counsel for the appellant submitted that:
(a)her Honour 'viewed s 87 as being exhaustive, whereas what this court has said in Narkle v Hamilton is it's facilitative and it doesn't remove the discretion that a sentencing judge has' (appeal ts 4); and
(b)her Honour 'appears to have not appreciated that she still retained an inherent ability … to backdate it' (appeal ts 5).
Proposed ground 1 alleges, primarily, that the trial judge erred in determining that s 87 of the Sentencing Act 'had no bearing on the appellant's case'.
Section 87 reads:
If when an offender is being sentenced to imprisonment for an offence ‑
(a)he or she has previously spent time in custody in respect of that offence and for no other reason (other than a warrant of commitment issued under the Fines, Penalties and Infringement Notices Enforcement Act 1994); and
(b)the sentencing court decides that that time should be taken into account,
the court may take that time into account ‑
(c)if it imposes a fixed term, by reducing that term by an appropriate period; or
(d)by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence. (emphasis added)
The proper construction and application of s 87 was considered by this court in Narkle v Hamilton [2008] WASCA 31.
In Narkle, Steytler P, McLure and Buss JJA made the following observations:
(a)Section 87 is not the source of the court's power (which it has long had) to take into account, if appropriate, when sentencing an offender, time spent in custody on remand [30].
(b)Section 87 sets out the means by which a sentence can be reduced or backdated where the court has determined, in the exercise of its non‑statutory power and as contemplated by s 87(b), that it will take into account, when sentencing an offender, time spent in custody on remand [30].
(c)Section 87 contains no express or implied limitation on the court's non‑statutory power to take into account, if appropriate, when sentencing an offender, time spent in custody, including on remand [30].
(d)Prior to the enactment of s 87, it was not open to the court to backdate a sentence [31].
(e)Consequently, s 87 was facilitative and was not intended to limit the court's non‑statutory power to take into account, if appropriate, when sentencing an offender, time spent in custody on remand [31].
(f)In R v Jones (Unreported, WASC, Library No 970210, 7 May 1997) Scott J appears to have concluded in effect that the words 'and for no other reason', in s 87(a), mean 'and for no other substantial reason'. The passage in Jones which contains Scott J's conclusion has been referred to, without disapproval, in later decisions including by Malcolm CJ in Palmer v The Queen [1999] WASCA 253 [22] and by Wheeler J in King v The Queen [2001] WASCA 198 [56] (see the reasons in Narkle at [19], [25], [28] ‑ [29]).
(g)It has not ever been doubted that s 87 was not intended to, and does not, preclude the operation of the totality principle [27]. Section 87 addresses only the issue of time spent in custody on remand [27].
(h)The court always has a discretion, when considering time spent in custody, to decide whether it will make an allowance for that time and, if so, how much of an allowance it will make [40]. Even where the time was spent in custody in respect of the offence in question, and for no other reason, the court does not have to give credit for the whole of the time [40]. The manner in which the discretion is exercised will depend upon the individual circumstances of each case [40].
In the present case, the trial judge was not empowered to backdate the appellant's sentence of 3 years' immediate imprisonment, pursuant to s 87 of the Sentencing Act, to take into account the time that the appellant had spent in custody on remand between 12 November 2014 and 24 July 2015, unless the time spent in custody was 'in respect of' the offence for which her Honour was sentencing the appellant 'and for no other reason', within s 87(a).
The expression 'in respect of' has a wide meaning. It takes its colour from the context in which it appears. It is the context which determines the matters to which it extends. See Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642, 653 ‑ 654 (Deane, Dawson & Toohey JJ).
The expression 'in respect of', in s 87(a), requires the existence of a causal connection between the time the offender has spent in custody, on the one hand, and the offence for which he or she is being sentenced, on the other. It is unnecessary to consider the precise nature and extent of the requisite causal connection.
In my opinion, it is not reasonably arguable that the time the appellant spent in custody on remand between 12 November 2014 and 24 July 2015 was 'for no other reason', within s 87(a), than 'in respect of' the offence for which he was being sentenced by her Honour. At all material times, there was another reason (which was a substantial reason) for the appellant having spent that time in custody, namely the appellant had been charged with the Second Charge and he had been refused bail and remanded in custody on the Second Charge.
Counsel for the appellant's submission to the effect that the trial judge had 'an inherent ability', apart from s 87 of the Sentencing Act, to backdate the appellant's sentence, is incorrect. It is true that this court held in Narkle that s 87 contains no express or implied limitation on the court's non‑statutory power to take into account, if appropriate, when sentencing an offender, time spent in custody, including on remand [30]. However, this court also noted in Narkle that, prior to the enactment of s 87, it was not open to the court to backdate a sentence for that purpose [31]. Although s 87 is facilitative, and does not limit the court's non‑statutory power to take into account, if appropriate, when sentencing an offender, time spent in custody on remand, s 87 is the sole source of the court's power to take time spent in custody on remand into account by backdating the sentence as distinct from reducing the sentence that would otherwise be appropriate.
Proposed ground 1 alleges, in the alternative, that her Honour erred in the exercise of her discretion by failing to take into account the time the appellant spent in custody on remand. It is not reasonably arguable that her Honour erred, as alleged.
Her Honour said, in the course of her sentencing remarks:
You have been in custody on remand for other matters since 12 November last year. None of this time relates to this offence. I've not been provided with any information about what you have done whilst in custody, but I will take into account that any sentence I impose will be served following this period of time in custody (ts 384).

At the sentencing hearing, defence counsel did not place before the trial judge any information as to any programmes or activities completed by the appellant while he was in custody or any other steps undertaken by him during that time towards rehabilitation. In those circumstances, her Honour could do nothing more than she did, namely take into account, in a general way, the fact that the term of immediate imprisonment she was about to impose would be served following the period of about 8 ½ months that the appellant had spent in custody.
Her Honour was not bound to discount the sentence for the contingency that the appellant might be acquitted on the Second Charge. The present case is distinguishable from Narkle.
In Narkle, the appellant was charged on 18 May 2005 with a number of serious sexual offences (the serious offences). They were allegedly committed by him on 12 May 2005. On 18 May 2005 he was remanded in custody in respect of the serious offences. On 24 May 2005, the appellant was charged with the indecent assault of a different complainant. He was then still in custody. The appellant remained in custody until 10 November 2006. On that date he was acquitted of the serious offences. On 10 November 2006, the appellant was released on bail in respect of the indecent assault charge. On 27 July 2007, he pleaded guilty to the indecent assault. The issue in Narkle was whether the magistrate who sentenced the appellant for the indecent assault was obliged to take into account in imposing sentence the time which the appellant had spent in custody on remand between 24 May 2005 and 10 November 2006. This court held that the period in custody on remand should have been taken into account. Steytler P, McLure and Buss JJA said:
It seems to us that, in this case, the time in custody between 24 May 2005 and 10 November 2006 should have been taken into account. It was served after the commission of the indecent assault and, as we have said, the appellant was remanded in custody in respect of that offence as well as the serious offences of which he was subsequently acquitted. He was, for any practical purpose, in no different position than that in which he would have been had he been remanded in custody solely in respect of the indecent assault. The appeal should consequently succeed upon that basis [44].
Proposed ground 1 is without merit. It has no reasonable prospect of success.

The merits of proposed ground 2

Proposed ground 2 alleges that the sentence of 3 years' immediate imprisonment was, in all the circumstances, manifestly excessive.
Counsel for the appellant based his argument upon the appellant's personal circumstances and antecedents, the nature and extent of the criminality involved in the offending and counsel's contentions about the sentences imposed in 'broadly … comparable cases'.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error.
It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender.
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. 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.
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
In Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58, French CJ, Hayne, Kiefel and Bell JJ said in relation to the notion of an 'available range' of sentences and the notions of 'manifest excess' and 'manifest inadequacy':
Reference to an 'available range' of sentences derives from the well-known principles in House v R ((1936) 55 CLR 499; [1936] HCA 40 (House)). The residuary category of error in discretionary judgment identified (House at 505) in House is where the result embodied in the court's order 'is unreasonable or plainly unjust' and the appellate court infers 'that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'. In the field of sentencing appeals, this kind of error is usually referred to as 'manifest excess' or 'manifest inadequacy'. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.
The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some 'substantial wrong has in fact occurred' (House at 505) in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an 'available range' of sentences, stating the bounds of an 'available range' of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the resentencing court to determine the bounds of the range within which the sentence should fall [26] ‑ [28]. (original emphasis)
The maximum penalty for the offence of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code, is 10 years' imprisonment.
I have examined numerous prior sentencing appeals which have dealt with sentencing for the offence of unlawfully doing grievous bodily harm, contrary to s 297(1) of the Code, including Ellis v The State of Western Australia [2013] WASCA 220 and The State of Western Australia vGhilardi [2015] WASCA 61, and decisions referred to in those cases. See also Hunter‑Aragu v The State of Western Australia [2015] WASCA 80. It is unnecessary to reproduce the facts and circumstances of or the sentencing outcomes in the prior cases. There are some comparable features between some of the cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
In the present case, the appellant's offending was, no doubt, serious. His assault upon the victim was unprovoked. He attacked, without warning, a man who was significantly shorter and smaller in stature. The blow was very forceful. The victim suffered an injury which required his admission to hospital, surgery and other medical treatment. His injuries were of such a nature as to endanger or be likely to endanger life. Although, fortunately, the victim does not have any permanent physical disability, he does have a significant permanent scar on his head. Also, he has suffered ongoing psychological trauma.
The appellant did not have the mitigation that a plea of guilty would have brought. On the night in question, he did not show any remorse for his actions or any concern for the victim. The trial judge accepted that, eventually, the appellant understood the substantial effect his criminal conduct has had upon the victim. Her Honour gave the appellant some credit in the sentencing process for remorse, but pointed out that his late remorse stemmed, at least in part, from a realisation of the consequences that his actions would have for him.
The appellant had reasonably good personal circumstances and antecedents but, as her Honour pointed out, he did have a previous conviction for assault occasioning bodily harm.

The appellant was aged 21 at the time of the offence and was 22 when sentenced. He therefore had the mitigation of youth.
After having regard to div 1 of pt 2 of the Sentencing Act, it is plain that a term of immediate imprisonment was the only appropriate sentencing option. See s 39(3) of the Act.
In my opinion, it is not reasonably arguable that the sentence of 3 years' immediate imprisonment was manifestly excessive. In other words, when the sentence is viewed from the perspective of the maximum penalty (10 years' imprisonment), and after taking into account all relevant facts and circumstances and all relevant sentencing factors, including:
(a)the serious of the offence;
(b)the vulnerability of the victim;
(c)the general pattern of sentencing for offences of the kind in question;
(d)the importance of personal and general deterrence as sentencing factors; and
(e)the limited mitigating features,
it is apparent that the length of the term of imprisonment was not unreasonable or plainly unjust. The sentence of 3 years' immediate imprisonment was commensurate with the seriousness of the offence and was within the range open to the trial judge on a proper exercise of the sentencing discretion.
Proposed ground 2 is without merit. It has no reasonable prospect of success.

Conclusion

I would grant the appellant leave to amend his appellant's case.
However, neither of the proposed grounds of appeal has a reasonable prospect of success. Leave to appeal should be refused. The application for an urgent appeal order is otiose and should be dismissed. The appeal must be dismissed.
MAZZA JA: I agree with Buss JA.