R v Manuel - [2020] WASCA 189

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   R -v- MANUEL [2020] WASCA 189
CORAM:   BUSS P
MITCHELL JA
BEECH JA

HEARD:   6 AUGUST 2020
DELIVERED          :   16 NOVEMBER 2020
FILE NO/S:   CACR 185 of 2019
BETWEEN:   THE QUEEN
Appellant

AND

TREVOR MANUEL
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   HERRON DCJ
File Number            :   IND 2332 of 2018

Catchwords:

Criminal law - Crown appeal against sentence - Respondent charged with three counts of cross-border firearms trafficking - Pleas of guilty - Trial of issues as to whether the respondent committed the offences for financial reward and whether the respondent committed the offences while subject to non-exculpatory duress - Sentencing judge found against the respondent on the trial of issues - Respondent acquired and then disposed of 87 firearms - Firearms unlawfully acquired and distributed to criminals, most likely outlaw motor cycle gang members - Of the 87 firearms, only five recovered - Manifest inadequacy - Totality

Legislation:

Crimes Act1914 (Cth) s 16A, s 16B, s 17A, s 19(2), s 19AB
Criminal Appeals Act 2004 (WA), s 31(4), s 41(3)
Criminal Code (Cth), s 360.2(1), s 360.3(1)
Firearms Act 1973 (WA), s 19(2)(a)
Weapons Act 1990 (Qld), s 50B(1)

Result:

Leave to appeal granted on grounds 1, 2, 3 and 4
Appeal allowed
Primary's judge's sentencing decision set aside
Respondent resentenced

Category: D

Representation:

Counsel:

Appellant	:	Ms S McNaughton SC & Ms L B Black
Respondent	:	Mr T F Percy QC & Mr S Butcher

Solicitors:

Appellant	:	Director of Public Prosecutions (Cth)
Respondent	:	Butcher Paull & Calder

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383
Bick v The Queen [2006] NSWCCA 408
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638
CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Day v The Queen [2019] WASCA 60
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Director of Public Prosecutions (Cth) v Munro [2019] VSCA 89
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McAlpine v The State of Western Australia [2018] WASCA 195
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125
R v Rajacic [1973] VR 636
R v Ruha; Ex parte Director of Public Prosecutions (Cth) [2010] QCA 10; [2011] 2 Qd R 456
Roffey v The State of Western Australia [2007] WASCA 246
Stipkovich v The Queen [2018] WASCA 63
The State of Western Australia v Doyle [2017] WASCA 207

JUDGMENT OF THE COURT:

This is a Crown appeal against sentence.
The respondent was charged on indictment with three counts.
Count 1 alleged that between 3 August 2016 and 10 April 2017, at Brisbane and elsewhere in Queensland and at Perth and elsewhere in Western Australia, the respondent, contrary to s 360.2(1) of the Criminal Code (Cth) (the Code), in the course of trade or commerce among the States, engaged in conduct that constitutes an offence under a firearm law, reckless as to the fact that the primary element of the offence was the disposal of a firearm by him.
The particulars of the firearm law, for the purposes of count 1, were that the respondent, contrary to s 19(2)(a) of the Firearms Act 1973 (WA), intentionally delivered or disposed of multiple firearms to another person, or otherwise permitted another person to take possession of multiple firearms knowing that the person by whom the firearms were received was not the holder of a licence or permit under the Firearms Act entitling him or her to possession of it.
Count 2 alleged that between 3 August 2016 and 8 March 2017, at Brisbane and elsewhere in Queensland and at Perth and elsewhere in Western Australia, the respondent, contrary to s 360.2(1) of the Code, in the course of trade or commerce among the States, engaged in conduct that constitutes an offence under a firearm law, reckless as to the fact that the primary element of the offence was the disposal of a firearm by him.
The particulars of the firearm law, for the purposes of count 2, were that the respondent, contrary to s 50B(1) of the Weapons Act 1990 (Qld), unlawfully supplied weapons, namely a quantity of firearms, to Wayne John Yanko.
Count 3 alleged that between 3 August 2016 and 3 March 2017, at Campbelltown and elsewhere in New South Wales and at Perth and elsewhere in Western Australia, the respondent, contrary to s 360.3(1) of the Code, intentionally in the course of trade or commerce among the States, sent a quantity of firearms from New South Wales to Western Australia, intending that the firearms will be disposed of in Western Australia and knowing that the disposal of the firearms would happen in circumstances that would constitute an offence against the firearm law of Western Australia.
The particulars of the firearm law, for the purposes of count 3, were that the disposal of the firearms would have occurred in circumstances where it would be contrary to s 19(2)(a) of the Firearms Act 1973 (WA) in that the firearms would have been sold, delivered or disposed of to another person, knowing that the other person by whom the firearms were received was not the holder of a licence or permit under the Firearms Act entitling him or her to possession of the firearms.
On 17 December 2018, the respondent entered pleas of guilty to the three counts in the Perth Magistrates Court.
On 16 July 2019, the respondent appeared before Herron DCJ (the primary judge) for sentencing. During sentencing submissions, defence counsel raised two issues. First, the respondent contested the Crown's submission that the respondent committed the offences for financial reward. Secondly, the respondent claimed that when he committed the offences he was subject to non‑exculpatory duress.
On 31 October 2019, there was a trial before the primary judge of those issues.
On 8 November 2019, his Honour held that he was satisfied beyond reasonable doubt that:
(a)The respondent was involved in the offending for commercial purposes in the expectation that he would benefit financially from his involvement. The respondent was aware that there was a potential for a considerable profit to be made and for the firearms to be onsold unlawfully to people involved in criminal activities.
(b)The respondent was not pressured to commit the offences because of threats or intimidation. The respondent had been associating with the other people involved in the offending for more than 20 years and had failed to report any matters of concern to the police during that period.
The maximum penalty for each offence is 10 years' imprisonment or a fine of $450,000 or both.
On 8 November 2019, the primary judge imposed individual sentences of immediate imprisonment as follows:
(a)count 1: 3 years;
(b)count 2: 3 years; and
(c)count 3: 3 years.
His Honour ordered that the individual sentences for counts 1 and 2 be served wholly concurrently and that the individual sentence for count 3 commence 2 years 6 months after the commencement of the individual sentences for counts 1 and 2. The total effective sentence was therefore 5 years 6 months' imprisonment. His Honour fixed a single non‑parole period of 3 years' imprisonment. The total effective sentence was backdated to 16 July 2019.
We would grant leave to appeal and allow the appeal. The primary judge's sentencing decision should be set aside and the respondent resentenced by this court.

The facts and circumstances of the offending

The facts and circumstances of the offending were, in essence, as follows.
On 16 December 2016, the respondent applied for a Western Australian firearm dealer's licence. He paid a fee of $455. For the application to be granted, he was required to study various firearm laws. He was also required to provide a business plan to Western Australia police, which he did through his company, Wyworrie Holdings Pty Ltd. He had registered that company on 3 August 2016.
The respondent had been encouraged to apply for a firearm dealer's licence by his brother, Gregory Manuel, and an acquaintance, Wayne Yanko.
On 17 February 2017 the respondent's company was issued with a firearm dealer's licence. The licence contained a number of conditions which included that the company could only sell, deliver or dispose of a firearm to another person if that person was the holder of a licence or permit under the Firearms Act1973 (WA) entitling them to possession, and that any firearm sold to a person interstate must be sent by post to a firearm dealer in that State, or could be transported by using an approved commercial carrier.
Between 27 February 2017 and 9 March 2017, the respondent, Gregory Manuel, Wayne Yanko and another person, Calvin Tucker, attended various gun dealers in Queensland and New South Wales and purchased or attempted to purchase, by payment of cash, large quantities of semiautomatic handguns. The dealer's licence required the respondent to maintain records of the handgun purchases.
As to count 1 (19 semiautomatic handguns), on 25 January 2017 the respondent contacted Cleaver Firearms in Queensland and discussed the purchase of semiautomatic handguns. The next day, he flew from Perth to Brisbane. Together with Gregory Manuel, the respondent visited Cleaver Firearms on 27 February 2017 and in two separate orders purchased nine semiautomatic handguns and 10 semiautomatic handguns for a total cost of approximately $20,000.
The respondent requested that Cleaver Firearms give him the firearms directly or allow the respondent's own courier to transport the firearms to Western Australia. Cleaver Firearms declined to do so because it would have been in contravention of their legal obligations. Instead, they sent the firearms to the respondent's address in Forrestfield via Australia Post.
The firearms were received by the respondent in two separate consignments on 9 March 2017 and 13 March 2017. The respondent subsequently sold or disposed of all of the 19 firearms by 27 March 2019. Further, the respondent failed to lodge the required documentation with police declaring the purchase and the subsequent sale or disposal of the firearms.
As to count 2 (46 semiautomatic handguns), on 27 February 2017 the respondent telephoned Gun World in Queensland and informed them that he was obtaining a dealer's licence and opening a gun shop in Western Australia and that he wanted to buy 20 semiautomatic handguns at a cost of less than $1,000 each. A quote was later sent to the respondent which he accepted. The respondent went to Gun World later that day and selected the 20 firearms for purchase.
On 1 March 2017, the respondent, Gregory Manuel and Wayne Yanko attended Gun World and showed them the respondent's company's dealer's licence. The respondent paid $16,550 in cash for 20 9mm semiautomatic handguns. The respondent took immediate possession of the 20 handguns.
On 7 March 2019, the respondent again contacted Gun World and ordered a further 26 semiautomatic handguns which were paid for and collected by Gregory Manuel and Wayne Yanko on 8 March 2019. Gregory Manuel did not have a firearm dealer's licence. He used the respondent's company's licence to obtain the handguns. Gregory Manuel paid $26,000 in cash for the handguns and took physical possession of them.
The location of the 46 semiautomatic handguns acquired from Gun World is unknown.
On 1 March 2017, the respondent travelled to Parramatta in New South Wales with Gregory Manuel, Wayne Yanko and Calvin Tucker. On 2 March 2017, the respondent made inquiries of various gun shops about purchasing firearms.
As to count 3 (22 handguns), on 2 March 2017 the respondent visited Abela's Gun Shop in Campbelltown and purchased 22 handguns of various makes and models including Glock and Beretta handguns. The respondent purchased the 22 handguns at a cost of $20,880 which he paid for in cash. The respondent took personal delivery of the handguns.
With the assistance of Gregory Manuel, the respondent arranged for the 22 handguns to be transported to Western Australia. The whereabouts of those 22 handguns is unknown.
The respondent later attempted to purchase further handguns from Cleaver Firearms for the sum of approximately $40,000 which was paid in cash. However, because queries were raised about the respondent's dealer's licence, the shipments were delayed. The money paid was seized by Queensland police.
On 27 March 2017, police executed a search warrant at the respondent's home in Forrestfield, which was also his business address. None of the firearms which had been purchased in Queensland and New South Wales were found at the respondent's home. The respondent told police that the firearms had been sent overseas.
The firearms which had been sent to the respondent via Australia Post by Cleaver Firearms had been delivered to the respondent's address. The respondent told police that he had given those firearms to someone else, whom he would not name.
Over the next few weeks, police executed search warrants on various premises and against various people, but were able to retrieve only five of the firearms which had been purchased by the respondent.
In summary, the respondent acquired and then disposed of 87 firearms. The police have been able to locate only five of those firearms after executing search warrants on known criminals. Consequently, 82 firearms have been unable to be located and their whereabouts is unknown.

The primary judge's sentencing remarks and the respondent's personal circumstances

The primary judge made findings and observations in his sentencing remarks as to the seriousness of the respondent's offending. In particular, his Honour noted:
(a)The respondent's offending is a serious example of this type of offending. As a result of the respondent's actions, the cross‑border movement of firearms was readily facilitated, in circumstances where the respondent knew that the firearms would be delivered to people involved in criminal activity. The respondent was significantly involved in that process (ts 145).
(b)As a result of the respondent's actions, 87 handguns were unlawfully acquired and distributed to criminals, most likely outlaw motorcycle gang members. Of those 87 handguns, police have only been able to locate and seize five. Therefore, 82 handguns are in the possession of criminals and other people who are likely to use the handguns in the commission of criminal offences (ts 143 ‑ 144).
(c)The distribution of such a significant number of handguns amongst criminals poses a significant risk to the lives and safety of members of the public. The respondent's actions have put the safety of members of the community at risk (ts 144).
(d)There was considerable planning and effort put into acquiring the handguns (ts 144).
(e)The respondent deliberately breached the strict licensing provisions of the Firearms Act and the strict controls which are placed upon people who are able lawfully to obtain and possess firearms (ts 144).
(f)Firearms can be used repeatedly and remain a lasting threat to public safety. Handguns are readily concealable and are difficult to detect. The handguns had a large magazine capacity and could be easily modified to fire automatically. Most of the handguns were semiautomatic, which increases the risk of harm that can be caused by their use (ts 144).
(g)The respondent's offending was carried out over an extended period, from August 2016 to March 2017. The respondent only ceased offending when the authorities were alerted to his activities (ts 144).
(h)The respondent's actions in contacting three different gun retailers in different States showed a degree of determination and planning (ts 144).
(i)The respondent did not cooperate with police. When the respondent volunteered to make a statement in March 2017, it contained a significant number of lies. Further, the respondent refused to disclose the identity of the persons to whom the handguns had been distributed (ts 144 ‑ 145).
His Honour found that, although the respondent was initially reluctant to become involved in the criminal scheme and it was necessary for the respondent to be encouraged and persuaded to become involved, no unlawful pressure or unlawful threats or intimidation were brought to bear upon the respondent to encourage and persuade him to become involved (ts 157 ‑ 162). His Honour was satisfied that the respondent willingly became involved, after being encouraged and persuaded to do so by Gregory Manuel and Wayne Yanko, because of the promise of financial inducements (ts 162). His Honour was also satisfied that there were discussions between the respondent, Gregory Manuel and Wayne Yanko about the respondent initially being paid $10,000 (ts 162). Further, his Honour was satisfied beyond reasonable doubt that the respondent's involvement in the offending was for commercial purposes in the expectation that he would benefit financially from his involvement (ts 163). The respondent was aware that there was a potential for a considerable profit to be made and for the firearms to be onsold unlawfully to people involved in criminal activity (ts 163).
The respondent's personal circumstances were, relevantly, as follows.
The respondent grew up in Mukinbudin. His family owned a wheat and sheep farm. The respondent and his two brothers grew up working on the farm. While the respondent's grandfather was alive, the farm was apparently profitable. However, when the grandfather died, the farm was split among the sons, causing difficulties with the business. In the mid to late‑1980s, the farm was repossessed by the mortgagees. The respondent had to give up his life as a farmer. He has continued to harbour significant feelings of grievance towards the mortgagees.
The respondent has been married for more than 41 years. He and his wife have four children and some grandchildren.
When the farm was repossessed, the respondent moved to Perth with his wife and children to seek work. Apart from farming, he had no qualifications. The respondent worked in a number of different areas. He has operated businesses with Gregory Manuel, which have generally failed.
In the mid‑1980s, the respondent became a born again Christian. He and his wife have been long‑term members of a Christian church.
The respondent was aged 59 at the time of the offending and was aged 62 when sentenced.
The information before the primary judge included a report dated 18 April 2019 from Dr William Babe, a general medical practitioner, and a report dated 9 July 2019 from Helen Fowler, a clinical psychologist.
In his report, Dr Babe said that the respondent had the following medical conditions:
(a)type 2 diabetes mellitus;
(b)hypertension;
(c)abdominal panniculitis;
(d)osteoarthritis;
(e)sun‑damaged skin; and
(f)gastroesophageal reflux disease.
Dr Babe expressed the view that the respondent's chronic illnesses were likely to be exacerbated by imprisonment. He added that both the respondent's skin condition and his panniculitis could potentially shorten his life.
His Honour accepted that, as a result of the respondent's medical conditions, prison would be more onerous for him and have a greater impact upon him than a younger person in good health (ts 165).

In her report, Ms Fowler said that the respondent presented information to her in a straightforward manner. He did not attempt to deny his offending. The respondent impressed as having a strong sense of family. He participated in the offending as a result of him 'owing' money to people with a long history of antisocial behaviour and gang relationships. Ms Fowler indicated that the respondent did not have any significant psychopathology. His self‑concept appeared to involve a reasonably stable and positive self‑evaluation. Ms Fowler was of the opinion that, given the long‑term psychological stress he has caused to himself and his family, coupled with the sentence he was likely to receive for his offending, the respondent was unlikely to reoffend in a similar manner.
The primary judge accepted that it was most unlikely that the respondent would become involved in similar offending again (ts 147, 163).
His Honour noted that the respondent had entered early pleas of guilty, accepted responsibility for his criminal behaviour and shown remorse (ts 145, 146).
The primary judge found that the respondent had 'led a law‑abiding life and [was] otherwise regarded as a person of good character until [the] offending' (ts 145). The respondent had significant support in the community, including from his family and his church.

The grounds of appeal

The Crown relies upon four grounds of appeal.
Ground 1 alleges, in essence, that the sentence of 3 years' immediate imprisonment for count 1 was manifestly inadequate.
Ground 2 alleges, in essence, that the sentence of 3 years' immediate imprisonment for count 2 was manifestly inadequate.
Ground 3 alleges, in essence, that the sentence of 3 years' immediate imprisonment for count 3 was manifestly inadequate.
Ground 4 alleges, in essence, that the total effective sentence of 5 years 6 months' immediate imprisonment and the non‑parole period of 3 years' imprisonment were manifestly inadequate.
On 17 February 2020, Buss P ordered that the application for leave to appeal on those grounds be referred to the hearing of the appeal.

Counsel for the Crown's submissions

Counsel for the Crown submitted that, when the principles relevant to sentencing for offences of the kind in question are applied to the facts and circumstances of the case, it is clear that the individual sentences of imprisonment for each count are manifestly inadequate.
It was also argued that the total effective sentence and the non‑parole period imposed by the primary judge are manifestly inadequate. The total effective sentence and the non‑parole period fail properly to reflect the maximum sentences, the objective seriousness of the respondent's offending, and the importance of general deterrence, punishment and denunciation as sentencing factors.

Counsel for the respondent's submissions

Counsel for the respondent submitted that, having regard to the facts and circumstances of the offending, the respondent's personal circumstances and all relevant sentencing principles and factors, the individual sentences imposed by the primary judge are not unreasonable or plainly unjust.
Counsel acknowledged that the total effective sentence 'could be viewed as low' or 'may be viewed as lenient', but nevertheless fell within 'the range of a sound sentencing discretion'. Counsel advanced similar arguments in relation to the length of the non‑parole period. It was submitted that the total effective sentence and the non‑parole period are 'broadly appropriate'.

Grounds 1, 2 and 3: their merits

The general sentencing principles applicable to federal offences are set out in div 2 of pt 1B of the Crimes Act1914 (Cth). See Hili v The Queen.[1]
[1] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [23] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
By s 68 of the Judiciary Act 1903 (Cth), some State or Territory laws in relation to the sentencing of federal offenders are picked up and applied when a State or Territory court, exercising federal jurisdiction conferred by s 68, sentences a federal offender. However, to the extent that pt 1B of the Crimes Act makes other provision, State and Territory laws in relation to the sentencing of offenders are not picked up. See Hili [21].
Section 16A(1) of the Crimes Act provides that, in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
By s 16A(2), in addition to any other matters, the court must take into account such of the matters listed in s 16A(2) as are relevant and known to the court.
Section 17A(1) provides, relevantly, that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
In Hili, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that s 16A of the Crimes Act accommodates the application of common law sentencing principles because those principles give relevant content to the words in s 16A(1) 'of a severity appropriate in all the circumstances of the offence', and to the words in s 16A(2)(k) 'the need to ensure that the person is adequately punished for the offence' [25]. Accordingly, concepts such as personal and general deterrence and other common law sentencing principles are accommodated in s 16A, even though they are not specifically referred to. However, s 16A does not permit generalisations to be made across all forms of federal offences about how individual sentences are to be fixed [25].
The majority in Hili also noted that, in dealing with appeals against sentences passed on federal offenders, it is necessary for there to be consistency of decisions throughout Australia. That consistency is to be achieved through the work of intermediate appellate courts. An intermediate appellate court should not depart from an interpretation of Commonwealth legislation by another intermediate appellate court, unless convinced that that interpretation is plainly wrong. Similarly, an intermediate appellate court should not depart from what is decided by another intermediate appellate court in considering the sufficiency of sentences passed on federal offenders at first instance, unless convinced that the decision is plainly wrong [57].
Section 16A applies of its own force to the sentencing of federal offenders. Although the provision accommodates the application of some common law sentencing principles (for example, general deterrence, proportionality and totality), it does not accommodate the principle of double jeopardy. See Bui v Director of Public Prosecutions (Cth).[2]
[2] Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638 [18] ‑ [20] (French CJ, Gummow, Hayne, Kiefel & Bell JJ).
A ground of appeal which alleges that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, 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 of the offender.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the respondent, it is necessary to have regard to a range of comparable cases. 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. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The guidance afforded by comparable cases is flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. The mere fact that 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 that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
When an intermediate appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the 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 inadequacy is alleged, there are no directly comparable cases, an intermediate appellate court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that the 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;[3] The State of Western Australia v Doyle;[4] McAlpine v The State of Western Australia.[5]
[3] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[4] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[5] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
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).
The discretion conferred on sentencing judges is, of course, of fundamental importance. An intermediate appellate 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. See Lowndes v The Queen.[7]
[7] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh,
It is well established that:
(a)a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;
(b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and
(c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.
See Pearce v The Queen;[8] Nguyen v The Queen.[9]
[8] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).
[9] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).
However, a sentencing judge may, in the application of the totality principle, achieve an appropriate total effective sentence either by ordering one or more of the individual sentences to be served wholly or partly concurrently or by reducing the otherwise appropriate length of one or more of the individual sentences. See Mill v The Queen;[10] Johnson v The Queen;[11] Nguyen [64]. Although the joint judgment in Mill expressed a preference for achieving an appropriate total effective sentence by, where practicable, making one or more of the individual sentences wholly or partly concurrent, it is not erroneous for a sentencing judge to lower one or more of the individual sentences below what would otherwise be appropriate.
[10] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).
[11] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26] (Gummow, Callinan & Heydon JJ).
If a sentencing judge decides, in the application of the totality principle, to achieve an appropriate total effective sentence by lowering one or more of the individual sentences below what would otherwise be appropriate, the judge should expressly state that fact in his or her sentencing remarks.
We turn to consider such of the matters specified in s 16A(2) of the Crimes Act as are relevant in the present case and are known to the court.
As to s 16A(2)(a), we have already recounted or referred to the nature and circumstances of each of the offences, including the respondent's role in the criminal scheme.
As to s 16A(2)(b), there are no other offences that are required or permitted to be taken into account.
As to s 16A(2)(c), the offences charged in counts 1, 2 and 3 occurred between 3 August 2016 and 10 March 2017. The respondent's criminality was not isolated or opportunistic. It involved planning and premeditation.
As to s 16A(2)(d), the 'victims' of the offending are potentially members of the Australian community, including police officers, who may be adversely affected by the unlawful use by criminals of the 82 firearms that have been unable to be located and whose whereabouts are unknown.
Section 16A(2)(e) and (ea) are not relevant.
As to s 16A(2)(f), as we have mentioned, the sentencing judge found that the respondent had accepted responsibility for his criminal behaviour and shown remorse.
Section 16A(2)(fa) is not relevant.
As to s 16A(2)(g), the respondent entered early pleas of guilty to all of the charged offences. The pleas were entered at the first mention in the Perth Magistrates Court.
As to s 16A(2)(h), the respondent did not cooperate, to any material extent, with law enforcement authorities in the investigation of the charged offences or any other offences. The respondent refused to disclose the identity of the persons to whom the handguns had been distributed.
As to s 16A(2)(j), the sentences under consideration are likely to have a significant deterrent effect on the respondent.
As to s 16A(2)(ja), the sentences under consideration are likely to have at least some deterrent effect on some other persons who are informed of the facts and circumstances of the respondent's offending and the sentences imposed on him.
As to s 16A(2)(k), it is essential to ensure that the respondent is adequately punished for the offences having regard, in particular, to the objective seriousness of his offending (including his role within the criminal scheme) and the important sentencing factor of general deterrence with a view to ensuring the safety of the Australian community, including police officers, from the use by criminals of unlicensed handguns.
As to s 16A(2)(m), the character, antecedents, age, means and mental condition of the respondent are apparent from our account of the facts and circumstances of the offending and his Honour's sentencing remarks. The respondent suffers from a number of medical conditions, but it is not apparent that those conditions cannot be adequately monitored and treated within a custodial setting. The chief executive officer of the Department of Justice, Corrective Services must ensure that medical care and treatment is provided to the prisoners in each prison. If and to the extent reasonably necessary, the chief executive officer would be obliged to arrange for the respondent to receive medical treatment at a facility in the community. See s 83 and pt VIII of the Prisons Act 1981 (WA); reg 54D(k), reg 54E(3) and reg 54F(2) of the Prisons Regulations 1982 (WA).
As to s 16A(2)(n), it appears that the respondent has very good prospects of rehabilitation and he is most unlikely to reoffend in a similar manner.
As to s 16A(2)(p), it is probable that the sentences imposed will have an adverse effect on the respondent's family. However, it is not apparent that his wife will be unsupported financially or emotionally. Further, his children are adults.
In the present case, counsel for the Crown and counsel for the respondent did not refer to any previous sentencing decisions in relation to federal firearms offences, apart from Director of Public Prosecutions (Cth) v Munro.[12]
[12] Director of Public Prosecutions (Cth) v Munro [2019] VSCA 89.
Counsel for the Crown informed the court that she was not aware of any intermediate court of appeal decisions in Australia on sentencing for offences against s 360.2(1) or s 360.3(1) of the Code.
Counsel for the Crown acknowledged that Munro was not a comparable case, but submitted that the decision provided some guidance (in particular, the sentences imposed for counts 3 and 5 in Munro) as to 'the appropriate range of sentences applicable', in the present case, to the respondent's offending.
Counsel for the respondent submitted that Munro was not a comparable case having regard to the significant differences between the seriousness of the offending in that case and the seriousness of the respondent's offending in the present case.
In Munro, the respondent pleaded guilty to four counts of importing tier 2 goods, contrary to s 233BAB(5) of the Customs Act 1901 (Cth). The respondent also pleaded guilty to two counts of attempting to import firearms or firearm parts with the intention of trafficking, contrary to s 11.1 read with s 361.2 of the Code. The maximum penalty for each of the six charged offences was 10 years' imprisonment or 2,500 penalty units or both. Count 1 related to six fully automatic assault rifles; count 2 to six AR‑15 lower receivers (a receiver being that part of a firearm which provides housing for a hammer, bolt or breechlock and firing mechanism and which is usually threaded at its forward portion to receive the barrel); count 3 to 30 semiautomatic handgun frames; count 4 to six fully automatic rifles; count 5 to 96 handgun frames; and count 6 to six fully automatic rifles. Each of the fully automatic rifles could fire 1,000 rounds of ammunition per minute. Save for irrelevant exceptions, there is no lawful use in Australia for a fully automatic machine gun of that kind. Their importation into Australia is prohibited absolutely.
In Munro, the Court of Appeal of Victoria allowed the Crown's appeal against sentence and resentenced the respondent to individual terms of immediate imprisonment, as follows:
(a)count 1: 4 years 6 months;
(b)count 2: 4 years;
(c)count 3: 4 years;
(d)count 4: 5 years;
(e)count 5: 4 years; and
(f)count 6: 4 years.
The Court of Appeal imposed a total effective sentence of 15 years' imprisonment with a non‑parole period of 11 years.
When the respondent in Munro was resentenced, seven of the fully automatic rifles had been recovered and five remained unaccounted for; all but one of the AR-15 lower receivers were still unaccounted for; and all but one of the handgun frames were still unaccounted for. The respondent in Munro was aged between 59 and 62 during the period of his offending and was aged 64 when sentenced. He had a number of significant health issues. The respondent had some prior convictions for offences arising out of his having operated a business as a licenced firearms dealer. The court released the respondent on a bond to be of good behaviour for 2 years in relation to those offences.
In our opinion, Munro is of very limited assistance. The offences committed by the offender in Munro were different from the offences committed by the respondent in the present case. The capacity of the firearms the subject of the offences in Munro was inherently more dangerous than the capacity of the firearms the subject of the offences in the present case. By contrast with the handguns in the present case, there is no lawful use in Australia for the fully automatic machine guns in Munro. However, a substantially greater number of firearms were the subject of each count in the present case compared to the number of firearms the subject of each relevant count in Munro. The firearms the subject of the offences in the present case were able to be concealed more easily than the firearms the subject of the offending in Munro. Nevertheless, the overall offending in Munro was significantly more serious than the overall offending in the present case.

Our research has not disclosed any previous sentencing decisions by intermediate courts of appeal in relation to the offence created by s 360.2(1) or the offence created by s 360.3(1) of the Code.
We have referred, in the course of recounting the facts and circumstances of the offending and the primary judge's sentencing remarks to:
(a)the serious features of the respondent's offending; and
(b)the mitigating factors.
We reiterate that the serious features of the respondent's offending included:
(a)the respondent had a significant involvement in the criminal scheme;
(b)the scheme involved considerable planning and effort;
(c)the respondent was involved in the scheme for commercial purposes in the expectation that he would benefit financially;
(d)the respondent's offending occurred over an extended period;
(e)the respondent only ceased offending when the authorities became aware of his activities;
(f)as a result of the respondent's actions, 87 handguns were unlawfully acquired and distributed to criminals, most likely outlaw motorcycle gang members;
(g)the 82 handguns that have not been recovered are in the possession of criminals and other people who are likely to use the handguns in the commission of criminal offences;
(h)the handguns are readily concealable and are difficult to detect;
(i)the handguns had a large magazine capacity and could easily be modified to fire automatically;
(j)the handguns can be used repeatedly and remain a lasting threat to public safety;
(k)the respondent deliberately abused the licensing system and pretended to be a legitimate firearms dealer; and
(l)the respondent refused to disclose the identity of the persons to whom the handguns had been distributed.
See, generally, the observations, in an analogous statutory context, in Day v The Queen.[13]
[13] Day v The Queen [2019] WASCA 60 [42] ‑ [45] (Buss P, Mazza JA & Allanson J).
We also reiterate that the mitigating factors included:
(a)the respondent's early pleas of guilty, which facilitated the administration of justice, but the mitigating force of the pleas was tempered by the necessity for a trial of issues on which the respondent was unsuccessful;
(b)the respondent had no relevant prior criminal record, but the mitigating force of his apparent prior good character was tempered by his previous association with criminal elements;
(c)the respondent was remorseful;
(d)the respondent was unlikely to reoffend in a similar manner; and
(e)the respondent's medical conditions will make imprisonment more onerous for him than would otherwise be the case.
We also note, in considering whether any or all of the individual sentences imposed for counts 1, 2 and 3 were manifestly inadequate, that count 1 involved 19 firearms (two orders having been placed on the same day); count 2 involved 46 firearms (two orders having been placed on different days); and count 3 involved 22 firearms. So, in that sense, each of counts 1, 2 and 3 was a rolled-up count. Further, count 2 comprised two distinct orders, each involving a substantial number of firearms on different days. Those features of the respondent's offending render it a more serious example of offences of its type than an offence involving only a single firearm or a few firearms.
We are satisfied, after analysing and weighing all relevant facts and circumstances (including the sentencing judge's unchallenged findings of fact) and all relevant sentencing factors (including such of the matters set out in s 16A(2) of the Crimes Act as were relevant and known to the court) in the context of:
(a)the maximum penalty for each offence;
(b)the seriousness of each offence and its place on the scale of seriousness of offences of its kind;
(c)the particular importance of general deterrence as a sentencing factor; and
(d)all matters of mitigation,
that the individual sentence of 3 years' immediate imprisonment imposed by his Honour for each of counts 1, 2 and 3 was not commensurate with the seriousness of the respondent's offending. The length of each individual sentence was not of a severity appropriate in all the circumstances of the offence. The individual sentence of 3 years' immediate imprisonment for each of counts 1, 2 and 3 was not merely lenient. In particular, each individual sentence was not merely at or towards the lower end of the sentencing outcome open to his Honour on a proper exercise of his discretion. Each individual sentence was substantially less than the sentencing outcome that was properly open to his Honour and was unreasonable or plainly unjust.
Grounds 1, 2 and 3 have been made out.

Ground 4: its merits

Section 16A of the Crimes Act accommodates the application of the totality principle. See Johnson [15]; Hili [25]. Section 16B of the Crimes Act requires a court sentencing a federal offender to have regard to any other sentences already imposed on the person. See Postiglione v The Queen.[14]
[14] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 308 (McHugh J).
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 a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia.[15] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) 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;[16] Gaskell v The State of Western Australia.[17]
[15] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[16] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[17] Gaskell v The State of Western Australia [2018] WASCA 8 [54] - [59] (Buss P), [151] (Mazza & Beech JJA).
Section 19AB(1) of the Crimes Act provides, relevantly, that subject to s 19AB(3), where a person is convicted of two or more federal offences at the same sitting, and a court imposes on the person federal sentences of imprisonment that, in the aggregate, exceed 3 years, and at the time the sentences are imposed the person is not already serving or subject to a federal sentence, the court must fix a single non-parole period in respect of those sentences. Section 19AB(3) confers on the court a discretion, in particular circumstances, to decline to fix a non-parole period.
Where a sentencing judge fixes a non-parole period, the non-parole period is part of the sentence. See R v Rajacic;[18] R v Hopkins;[19] R v Ruha; Ex parte Director of Public Prosecutions (Cth).[20]
[18] R v Rajacic [1973] VR 636, 641 (Smith ACJ, Newton J agreeing).
[19] R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125 [12] (Southwood J).
[20] R v Ruha; Ex parte Director of Public Prosecutions (Cth) [2010] QCA 10; [2011] 2 Qd R 456 [45] (Keane & Fraser JJA & Atkinson J).
The non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen;[21] Deakin v The Queen;[22] Bugmy v The Queen.[23]
[21] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 ‑ 629 (Barwick CJ, Menzies, Stephen & Mason JJ).
[22] Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367 (Gibbs CJ, Murphy, Wilson, Brennan & Dawson JJ).
[23] Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531 (Mason CJ & McHugh J), 536 (Dawson, Toohey & Gaudron JJ).
The fixing of a non-parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender. See Bugmy (531).
The factors which a sentencing judge must take into account when fixing a non-parole period are the same as those applicable to the setting of the head sentence. However, the weight to be given to these factors, and the manner in which they are relevant, will differ in consequence of the different purposes underlying each function. See Bugmy (531). Sentencing factors which count against mitigation may increase the length of the head sentence and also the proportion that the non-parole period bears to the head sentence. The converse applies to sentencing factors in favour of mitigation. See Lam v The Queen.[24] Any necessary deterrent and punitive effects of sentences for a particular offence must be reflected both in the head sentence and also in the non-parole period. See Hili [41].
[24] Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562 [56] - [57] (McLure P; Buss & Newnes JJA agreeing); applied in Stipkovich v The Queen [2018] WASCA 63 [34] (Mitchell & Beech JJA & Allanson J).
In Bick v The Queen,[25] Price J (Hodgson JA and Howie J agreeing) summarised the main factors which are relevant to the determination, in any case, of the appropriate ratio between the non-parole period and the head sentence. His Honour said:
Factors identified as material to the determination of the appropriate ratio for a non-parole period include the length of the head sentence and its position in the permissible range: (see Bernier (1998) 102 A Crim R 44 (at 49) and Sweet (2001) 125 A Crim R 341 (at 346)), the seriousness of the offence and the prospects of rehabilitation (see Stitt (1998) 102 A Crim R 428 and Meloh [2001] NSWCCA 211 at [10]) and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence (see Drazkiewicz unreported, Court of Criminal Appeal, NSW 23 November 1993).
[25] Bick v The Queen [2006] NSWCCA 408 [15].
That passage was cited with approval in Bertilone v The Queen[26] and in Stipkovich [34].
[26] Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383 [33] (Buss JA; McLure & Miller JJA agreeing).
There is no judicially determined norm or starting point (whether as a percentage of the head sentence or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on parole. In particular, it is wrong to begin from some assumed starting point and then seek to identify 'special circumstances'. Rather, a sentencing judge must determine the length of the non-parole period by reference to, and application of, the principles identified by the High Court in Power, Deakin and Bugmy.See Hili [44]; Stipkovich [35].
In Lam [49], McLure P (Buss and Newnes JJA agreeing) explained the basis on which an intermediate appellate court should determine whether a non-parole period for a federal offence is manifestly excessive or manifestly inadequate:
In determining whether a non-parole period is manifestly excessive (or inadequate) this court applies the same test it applies to head sentences, modified to take into account any statutory minimum or maximum. In particular, the court has regard to any statutory limits on the available minimum period, the standards of sentencing customarily imposed for offences of the relevant type, the place which the criminal conduct occupies on the scale of seriousness and the antecedents of the offender: Prestidge v The State of Western Australia [2014] WASCA 16; Rosewood v The State of Western Australia [2014] WASCA 21; Stinson v The State of Western Australia [2014] WASCA 72. Whether it be a challenge to the head sentence or a non-parole period, the standards customarily imposed provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind that there is scope for significant variations in relevant sentencing factors and no single correct sentence: Stinson [17]. It has also applied the principles approved in Hili to federal offences: Bertilone v The Queen (2009) 231 FLR 383.
We are satisfied, after analysing and evaluating all relevant facts and circumstances (including the primary judge's unchallenged findings of fact) and all relevant sentencing factors (including such of the matters set out in s 16A(2) of the Crimes Act as were relevant and known to the court) in the context of:
(a)the maximum penalty for each offence;
(b)the overall seriousness of the offending considered as a whole;
(c)the particular importance of general deterrence as a sentencing factor; and
(d)all matters of mitigation,
that the total effective sentence of 5 years 6 months' imprisonment was unreasonable or plainly unjust. The total effective sentence was not merely 'lenient' or 'at the lower end of the available range'. It was substantially less than the total effective sentence that was open to his Honour on a proper exercise of his discretion.
Further, we are satisfied, after analysing and weighing all relevant facts and circumstances (including his Honour's unchallenged findings of fact) and all relevant principles relating to the fixing of a non‑parole period, in the context of:
(a)the maximum penalty for each offence;
(b)the overall seriousness of the offending considered as a whole;
(c)the particular importance of general deterrence as a sentencing factor; and
(d)all matters of mitigation,
that the minimum non‑parole period of 3 years was unreasonable or plainly unjust. The interests of justice, in all the circumstances, required that the respondent serve a substantially longer non‑parole period than 3 years. That is the only conclusion reasonably open. The non‑parole period fixed by his Honour was not merely 'lenient' or 'at the lower end of the available range'. It was substantially less than the non‑parole period that was open to his Honour on a proper exercise of his discretion.
Ground 4 has been made out.

The outcome of the appeal and the resentencing of the respondent

Counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. That is, counsel did not submit that if this court was satisfied that grounds 1, 2, 3 and 4 had been made out, the court should, nevertheless, exercise the court's residual discretion to dismiss the Crown's appeal. The respondent does not, of course, bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the Crown to negate any reason why the residual discretion of this court not to interfere should be exercised. See CMB v Attorney‑General (NSW).[27]
[27] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34] (French CJ & Gageler J) [66] (Kiefel, Bell & Keane JJ).
In our opinion, there is no basis, in the present case, for invoking the residual discretion. As we have mentioned, the sentences and non‑parole period imposed by the primary judge were substantially less than those open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for the relevant offences.
As we will explain, we consider that, in the exercise of this court's discretion to resentence the respondent, a different and substantially longer individual sentence for each count, total effective sentence and non‑parole period should be imposed. See s 31(4)(a) of the Criminal Appeals Act.
We would grant leave to appeal on grounds 1, 2, 3 and 4. The appeal should be allowed.
His Honour's sentencing decision (including the sentences, the non‑parole period and the associated orders) should be set aside.
This court has the material necessary to resentence the respondent. After taking into account all relevant facts and circumstances (including the primary judge's unchallenged findings of fact) and all relevant sentencing factors (including such of the matters set out in s 16A(2) of the Crimes Act as are relevant and known to the court) in the context of:
(a)the maximum penalty for each offence;
(b)the seriousness of the offending;
(c)the particular importance of general deterrence as a sentencing factor; and
(d)all matters of mitigation,
we would sentence the respondent to 4 years 6 months' immediate imprisonment for each of counts 1, 2 and 3, and impose a total effective sentence of 7 years 6 months' imprisonment.
Pursuant to s 19AB of the Crimes Act, and after taking into account all relevant facts and circumstances (including the primary judge's unchallenged findings of fact) and all relevant principles relating to the fixing of a non‑parole period, in the context of:
(a)the maximum penalty for each offence;
(b)the seriousness of the offending;
(c)the particular importance of general deterrence as a sentencing factor; and
(d)all matters of mitigation,
we would fix a non‑parole period of 5 years.
Pursuant to s 19(2) of the Crimes Act and s 41(3)(c) and (d) of the Criminal Appeals Act:
(a)each of the new individual sentences for counts 1 and 2 is to be taken to have taken effect on 16 July 2019; and
(b)the new individual sentence for count 3 is to commence on 16 July 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Honourable Justice Buss
16 NOVEMBER 2020

Gummow, Kirby, Hayne & Callinan JJ).