Brady v The the King
[2022] NZHC 2697
•18 October 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-81
[2022] NZHC 2697
BETWEEN JOSH BRADY
Appellant
AND
THE KING
Respondent
Hearing: 6 October 2022 Appearances:
O K Jarvis and H L Beaven for Appellant G E R Alloway for Respondent
Judgment:
18 October 2022
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 18 October 2022 at 3.00 pm
Registrar/Deputy Registrar Date:
BRADY v R [2022] NZHC 2697 [18 October 2022]
Introduction
[1] Josh Brady, aged 23 years old (and 21 at the time of this offending), pleaded guilty to and was convicted of two representative charges of sexual conduct with a young person under 16 years of age.1 Judge Crosbie sentenced Mr Brady to 10 months’ home detention and registered him on the Child Sex Offender Register.2 Mr Brady appeals that registration.
Facts
[2] Some of Mr Brady’s offending against the victim involved Malcolm Campbell as a co-offender. Mr Campbell pleaded not guilty to the charges and was convicted of two counts of sexual connection with a young person at a Judge-alone trial.3 Mr Campbell was a caregiver for Oranga Tamariki and was Mr Brady’s caregiver for 100 days in 2015 when Mr Brady was 16 years old. In 2016, after Mr Brady left Mr Campbell’s care, they entered into an intimate relationship which continued intermittently until approximately December 2020.
[3] The victim of the offending is a 14-year-old boy who lived under Mr Campbell’s care periodically throughout 2020. In late September 2020, when the victim was 13 years old, Mr Campbell told Mr Brady that the victim was attracted to Mr Brady. Mr Brady started to communicate with the victim via Facebook Messenger.
[4] On a date in October 2020, Mr Brady and Mr Campbell were at Mr Campbell’s address. Mr Brady was communicating with the victim on Facebook Messenger. Mr Campbell told Mr Brady to ask the victim to come over. Mr Brady picked up the victim from near his home address and drove him to Mr Campbell’s address. Mr Brady told the victim that Mr Campbell was going to “shout a session” of cannabis.
[5] After arriving at Mr Campbell’s address, Mr Brady and the victim went into the living room and started to kiss each other. Mr Campbell eventually came out of the bedroom and told Mr Brady and the victim to come into his room. They went and
1 Crimes Act 1961, s 134(1): maximum penalty 10 years’ imprisonment.
2 R v Brady [2022] NZDC 8585.
3 R v Campbell [2022] NZDC 19588.
Mr Brady started to perform oral sex on the victim on the bed. Mr Campbell sat on the other side of the bed and started to masturbate. Mr Campbell asked the victim to give him oral sex. The victim performed oral sex on Mr Campbell. The victim then switched positions on the bed and Mr Brady performed oral sex on him. The victim then penetrated Mr Brady’s anus for a short period of time. Following this, the victim performed oral sex on Mr Campbell again. The incident concluded when the victim ejaculated into Mr Brady’s mouth. During the incident, the victim felt disgusted by what was happening with his ex-caregiver and vomited.
[6] Sometime in October or November 2020, Mr Brady and the victim met at the Groynes Recreational area in Christchurch, where they found a secluded area off a walking track where they gave each other oral sex and smoked cannabis. There was a further incident where the same thing happened, at the Styx Mr Alexander Conservation Reserve, and the victim also penetrated Mr Brady’s anus with his penis. There was another date where they travelled to the Reserve, where they gave each other oral sex in the carpark.
[7] In November 2020, Mr Brady met the victim at an address in Christchurch. Mr Brady went to a sleepout at the address with the victim where they smoked cannabis. Mr Brady and the victim had anal sex, the victim penetrating Mr Brady’s anus with his penis. The incident concluded when Mr Brady ejaculated on the victim’s chest.
[8] Mr Brady admitted to these facts as outlined after coming to the Police to make a confession about his conduct with the victim. The Police were previously unaware of the allegations against him. Mr Brady supplemented this confession with a second statement to Police where he admitted further offending against the victim.
[9] A psychological assessment of Mr Brady by Paul Neilson, a clinical psychologist, was before the District Court at sentencing. Mr Brady’s risk of re- offending was assessed as medium low.
District Court decision
[10] Judge Crosbie gave Mr Brady a sentence indication on 15 February 2022, which Mr Brady accepted on 25 February 2022. The Judge sentenced Mr Brady on
12 May 2022. He had before him a pre-sentence report, a victim impact statement from the victim’s mother, Mr Neilson’s report, and a reference letter from family friends.
[11] In the sentence indication, the Judge considered the most relevant features of the offending were the age gap that was not significantly large but also not small; four incidences of penetrative sex; a breach of trust because of the victim’s relationship with Mr Campbell; premeditation; and an element of grooming. His Honour noted that Mr Brady is still relatively young, and in some ways, Mr Brady was also a victim of Mr Campbell.
[12] At sentencing, the Judge quoted from the victim’s mother’s statement as to the effects the offending had on the victim. She said that his mood had changed, he had suicidal thoughts and had turned to drugs as a way to cope. There was also an effect on the victim’s mother physically and emotionally. The Judge also inferred that Mr Campbell exploited Mr Brady, which led to a sense of normalisation and perhaps made Mr Brady think that what had occurred in relation to the victim was permissible. The Judge suppressed this information.
[13] The Judge adopted a starting point of three years and nine months’ imprisonment. His Honour gave discounts for youth, co-operation through voluntarily disclosing the offences and assisting in the prosecution of Mr Campbell and Mr Brady’s complex psychological issues. The Judge indicated in his sentence indication remarks that the discount for those would be 30 per cent collectively. Mr Brady also received a 20 per cent discount for his guilty plea. Those discounts reduced his sentence by 50 per cent to 22 or 23 months’ imprisonment. The Judge, after providing this adjusted starting point, brought the sentence down to 20 months’ imprisonment to reflect Mr Brady’s willingness to engage in restorative justice. This was then commuted to a sentence of 10 months’ home detention, with leave to have the sentence cancelled part way through to be replaced with one of community detention or intensive supervision if necessary to allow Mr Brady to attend a STOP programme or another type of residential rehabilitation programme.
[14] The Judge explained his decision to order registration on the Child Sex Offender Register:
[36] The final matter is whether there should be registration. It is accepted that you qualify for registration. Ms Jarvis submits that the unusual aspects of this case are such that I should exercise my discretion not to.
[37] As I have said, there are many unusual aspects. One of them is that you came forward. That of itself is not a reason against registration. Counsel submits you do not pose a risk to the lives of children or their sexual safety. I must respectfully disagree with that. Untreated, you remain a risk and will remain a risk. I have looked at what the psychological report says. While assessed as low risk, but there will be a risk. Quite how that risk is looked at and managed, well there are matters to work through yet such as a STOP programme and any further treatment.
[38] Counsel also looks at your age at the time. I accept that you were 21. However, there was a not insignificant age disparity between you and the victim. The victim remains a child. There have been some significant effects as are clear from the victim impact statement. The Crown says, and I accept, that the offending occurred over a significant period of time. It involved grooming. It involved premeditation. It is, in the scheme of things, relatively serious offending.
[39] My assessment is that this is not a case where I am prepared to exercise my discretion to rule that you should not be registered. That registration will occur.
Principles on appeal
[15] Section 9(4) Child Protection (Child Sex Offender Government Agency Registration) Act 2016 provides that a registration order is a sentence for the purposes of pt 6 of the Criminal Procedure Act 2011 (CPA). The following principles on appeal therefore apply.
[16] Appeals against sentence are allowed as of right by s 244 CPA and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 As the Court of Appeal identified in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is appropriate for this Court to intervene and
4 Criminal Procedure Act 2011, s 250(2) and (3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6
Submissions
Appellant’s submissions
[17] Ms Jarvis, and Ms Beaven, for the appellant, advanced the appeal on the grounds that the Judge erred in two ways when exercising his discretion to register Mr Brady on the child sex offender registry. First, by placing excessive weight on the fact that Mr Brady was untreated, when treatment was part of the proposed sentence. Secondly, by not following the two-stage approach identified by the Supreme Court in D (SC31/2019) v Police.7
Mr Brady’s lack of treatment
[18] Ms Beaven, who dealt with this first aspect of the appeal, referred to the Judge’s observation (at [37] of the District Court judgment, above at [14])) as to Mr Brady’s then untreated issues.
[19] She submitted that, if lack of treatment is considered in assessing risk to the lives or sexual safety of children, then all defendants would pose as a risk at sentencing when they have not yet engaged with their rehabilitative sentence. She informed me that Mr Brady has since sentencing commenced the STOP programme.
D(SC31/2019) v Police two-stage analysis
[20] Ms Jarvis submitted that, while the Judge engaged with some of the factors required under the statutory test, the assessment of the factors was incorrect. She submitted that the Judge placed too much weight on the length of time in which the offending occurred, and that the Judge placed too little weight on Mr Campbell’s involvement in the matter, not recognising the highly contextualised nature of the offending. She noted in particular the defined period with which Mr Brady offended,
6 Ripia v R [2011] NZCA 101 at [15].
7 D (SC31/2019) v Police [2021] NZSC 2, [2021] 1 NZLR 213.
in unstable living circumstances and groomed by another man. She accepted that even low risk will be considered a risk. But she submitted that, taking into account all the factors, Mr Brady’s risk should be characterised as at the lower end of the scale. She said, particularly by reference to Ms Isaacson’s report (below at [33](g)), that his offending was contextual, specific or situational, as opposed to being due to a general deviance.
[21] Ms Jarvis submitted that the utility of making a registration order in the case of Mr Brady is far outweighed by the intrusion that such an order would have on Mr Brady. She said it is a disproportionate consequence given the low risk identified. She submitted that few of the restrictions of registration will be relevant to address Mr Brady’s risk factors. She observed that a restriction on association may serve such a purpose for him but again suggests that it was the specific involvement of Mr Campbell by linking Mr Brady up with the victim, that led to the offending rather than a direct initial association between Mr Brady and the victim.
[22] Ms Jarvis also invited the Court to be cautious in its consideration of Mr Neilson’s psychological assessment, given the extent to which the assessment tools are based on the actuarial assessments. In her submission that does not sufficiently take into account the contextualised situation of offending such as Mr Brady’s. She suggested the report of Ms Isaacsson should be accorded more weight, with a greater consideration of whether reporting requirements flowing from registration will assist or hinder his treatment. In Ms Isaacson’s opinion, his treatment may be hindered by the reporting requirements that come with being registered.
Respondent’s submissions
[23] Mr Alloway, for the respondent, submitted that Mr Brady poses a real and genuine risk to the sexual safety of a child or children generally, and the risk is of a sufficient gravity to warrant registration on the Child Sex Offender Register.
[24] Mr Alloway referred to the two psychological reports before the Court. He noted that Mr Neilson assessed Mr Brady as at a medium low risk of reoffending, having voiced little remorse and demonstrated limited caring attitudes towards the victim and others affected by the offending. He noted that on various different
measures adopted by Ms Isaacson, Mr Brady was assessed as being above average risk for reoffending, moderate risk and average risk. Mr Alloway observed that both reports noted that enhancement of protective factors and desistence from sexual reoffending would reduce his risk level. Mr Alloway submitted, on this evidence, the Court was entitled to conclude that the risk Mr Brady poses is at least moderate to average — higher than the “low risk” referred to by the Judge.
[25] On the first ground of appeal, Mr Alloway submitted that the Judge was correct to note that treatment would lower his risk level. The Judge recognised that the risk level, left untreated, was real. Mr Alloway submitted this was consistent with the reports before the Court.
[26] For the second ground of appeal, Mr Alloway submitted the Judge had regard to all of the unusual factors of the offending, the particular role Mr Brady played in the offending and the factors in s 9 of the Act. Mr Alloway submitted it was open to the Judge to conclude that Mr Brady posed the relevant risk. Mr Alloway noted that while the offending occurred in a specific context, Ms Isaacson reported warning signs of risk would include Mr Brady returning to an unstructured lifestyle dominated by substance abuse, accommodation instability and a lack of prosocial community support. Mr Alloway submitted these features may well occur in the future.
[27] Mr Alloway accepted that the Judge did not explicitly weigh Mr Brady’s risk level against his rights, but said that it was implicit in his conclusion that he would not exercise his discretion that this was what his Honour was doing.
Analysis
[28] Section 9 Child Protection (Child Sex Offender Government Agency Registration) Act provides that, if a court imposes a non-custodial sentence in respect of a qualifying offence, the court may order that person to be placed on the Child Sex Offender Register and to comply with the obligations of the Act. A court may make a registration order under that section only if satisfied the person poses a risk to the lives
or sexual safety of one or more children, or of children generally.8 Section 9(3) provides a list of factors that the Court must consider in making this assessment:
(3)For the purpose of assessing the risk posed by the person, the court must consider the following matters:
(a)the seriousness of the qualifying offence:
(b)the period of time that has elapsed since the offence was committed:
(c)the age of the person:
(d)the age of the person at the time of the offence:
(e)the age of any victim of the offence at the time of the offence:
(f)the difference in age between the victim and the person at the time of the offence:
(g)any written assessment of the risk posed by the person:
(h)any submission or evidence from any victim of the offence:
(i)any other submission or evidence relating to the risk posed by the person
(j)any other matter that the court considers relevant.
[29] If Mr Brady is registered, he will have reporting obligations and be registered under the Child Protection (Child Sex Offender Government Agency Registration) Act for eight years.9 The items of information registered offenders have to report is extensive. For the initial report, the registered offender must report the information identified in s 16(1) of the Act:10
(1)For the purposes of this Act, the relevant personal information to be reported by a registerable offender consists of the following information:
(a)his or her name, together with any other name by which he or she is, or has previously been, known:
(b)in respect of each name other than his or her current name, the period during which he or she was known by that other name:
(c)his or her date of birth:
8 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 9(2).
9 Section 35(1)(d) and (4).
10 See s 18: for a periodic report, the registered offender must confirm this information is still correct or update it.
(d)the address of each of the premises at which he or she generally resides or, if he or she does not generally reside at any particular premises, the name of each of the localities in which he or she can generally be found:
(e)the name, sex, and date of birth of each child who generally resides in the same household as that in which the offender generally resides:
(f)in respect of each child who generally resides in the same household as that in which the offender generally resides, the name of the principal caregiver:
(g)his or her postal address for service of notices and documents under this Act:
(h)if he or she is working,—
(i)the nature of the work; and
(ii)the name of his or her employer (if any); and
(iii)the address of each of the premises at which the offender generally works or, if he or she does not generally work at any particular premises, the name of each of the localities at which he or she generally works:
(i)details of his or her affiliation with any club or organisation that has a child membership or child participation in its activities, including any online club or organisation:
(j)the make, model, colour, and registration number of any motor vehicle owned by, or generally driven by, the offender:
(k)details of any tattoos, scars, or permanent distinguishing marks that he or she has (including details of any tattoo or mark that has been removed):
(l)if, at the time of making an initial report, he or she has 1 or more valid passports, the passport number, place of issue, and date of expiry of each passport:
(m)details of any telecommunications service used, or intended to be used, by the offender, including—
(i)the name of any landline or mobile telephone service provider used, or intended to be used, by the offender; and
(ii)any phone numbers used, or intended to be used, by the offender:
(n)the name of any Internet service provider, and the details of any routing or modem device, used, or intended to be used, by the offender:
(o)details of any username for any online social networks, online gaming accounts, or online storage accounts used, or intended to be used, by the offender:
(p)details of any website domain owned or website administered, or intended to be owned or administered, by the offender:
(q)details of any email addresses used, or intended to be used, by the offender.
[30] Registered offenders must also report any travel plans and, if they have left the country, they must report upon their return.11
[31] The approach to determining whether a registration order should be imposed was considered by the Supreme Court in D (SC31/2019) v Police.12 The Supreme Court established a two-stage analysis. The first stage is the court must be satisfied that the offender poses a real or genuine risk to the lives or sexual safety of a child or children generally.13 The second stage is that the court must be satisfied that this risk is of sufficient gravity to justify the making of a registration order with the consequent impacts on the rights of the offender. This includes an assessment of the nature and seriousness of the risk posed by the offender.14
[32] The District Court Judge in this case did not expressly apply the two-stage approach from D (SC31/2019) v Police. However, for a sentence appeal to be allowed, this Court must be satisfied that not only was there an error, but that a different sentence should be imposed.15 I will therefore apply D (SC31/2019) v Police analysis fresh.
[33] The first stage of the test involves an assessment of Mr Brady’s risk through a consideration of the s 9 factors. These are:
11 Sections 21–23.
12 D (SC31/2019) v Police, above n 7.
13 At [104]–[105].
14 At [106]–[108].
15 Criminal Procedure Act, s 250(2)(b).
(a)Seriousness of the qualifying offence — the offence committed is very serious. It is a class 3 offence under the Child Protection (Child Sex Offender Government Agency Registration) Act, the most serious class of offending.16 It would subject Mr Brady to life-long registration if he were sentenced to imprisonment.17 The offending by its nature was clearly serious. I accept that the circumstances around the offending were unusual in that Mr Brady himself was a victim of abuse. But the offending remains very serious given:
(i)Mr Brady initiated contact with the victim;
(ii)much of the conduct occurred in the absence of Mr Campbell;
(iii)there is no suggestion that Mr Campbell applied any pressure to Mr Brady to contact or initiate sexual conduct with the victim, other than to mention that the victim found Mr Brady attractive; and
(iv)there were multiple incidents over a period of a few months.
(b)Period of time elapsed since the offence was committed — the offending occurred in 2020. This is not a significant factor in this case.
(c)Mr Brady’s age — Mr Brady is currently 23.
(d)Mr Brady’s age when the offence was committed — Mr Brady was 21 at the time of the offending. He has a limited criminal record (one driving offence, one count of theft, a charge of speaking threateningly and breaches of community work). I accept Ms Jarvis’ submission that he has a good prospect of rehabilitation (a matter accepted by the District Court Judge in imposing a rehabilitative sentence).
16 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, sch 2.
17 Section 35(1)(a).
(e)Age of the victim at the time of the offence — the victim was 13 years old at the time of the offence.
(f)Difference in age between the victim and Mr Brady — Ms Jarvis submitted there was not a significant age gap in this case. I disagree. The age gap was approximately eight years between Mr Brady and the victim at the time of the offending. I consider the Judge was correct to take this into account in assessing the seriousness of the offending.
(g)Any written assessment of the risk posed by Mr Brady — there are the two psychological reports now put before this Court. Mr Neilson assessed Mr Brady’s risk level, using the actuarial assessment Automated Sex Offender Recidivism Scale (Revised) (ASRS-R), as medium low risk of reoffending. Others in New Zealand at this level have a five year recidivism rate of 4.52 per cent, and a ten year recidivism rate of 6.83 per cent. Mr Neilson also considered dynamic risk factors. He said Mr Brady has:
(i)a number of distorted beliefs that restrict his insight into his offending;
(ii)he has demonstrated limited caring attitude towards the victim and others involved in the offending; and
(iii)he has demonstrated poor levels of emotional regulation.
Ms Isaacson, using the Static-99R assessment tool, assessed Mr Brady as having an above average risk (the second highest risk level). His risk level using this measure will steadily decrease if he does not reoffend. Using the STABLE-2007 dynamic factor assessment, she assessed Mr Brady as having a moderate risk. Combining these tests, she assessed Mr Brady as having an average risk of sexual recidivism. Ms Isaacson considered Mr Brady’s offending appeared restricted to a specific period where he had unstable living circumstances, an
association with Mr Campbell, and been groomed into sexual activity. She said there was no evidence that his sexual offending would likely generalise across different contexts. She assessed him as having genuine empathy for the victim.
(h)Any submission or evidence from the victim — The victim did not directly provide a victim impact statement, but his mother recorded the impact of Mr Brady’s crimes upon her son. She detailed how the offending affected the victim’s mental health, leading to suicidal thoughts, self-harm, and drug-taking as a way to cope. She opines, understandably, that Mr Brady and Mr Campbell have screwed up the victim’s future, leaving him unable to have normal teenage years.
(i)Any other submission or evidence relating to risk posed — Ms Jarvis submitted the fact that Mr Brady handed himself into Police should be considered in reducing the risk he poses. She said that he clearly knew his offending was wrong, and while there are elements of normalisation, these are limited to this offending alone. She said this offending was not indicative of a more generalised risk of offending against children. I accept Mr Brady’s voluntary surrender and confusion indicate an awareness that impacts on Mr Brady’s level of risk. The best evidence of his risk remains in two psychologists assessments.
(j)Any other matter the court considers relevant — Ms Jarvis submitted the Judge over-emphasised the fact that Mr Brady was untreated when he was sentenced. I disagree. Whether Mr Brady had undergone treatment is a relevant factor in determining his risk. In D (SC31/2019) v Police, the Supreme Court had to consider whether to admit an updated psychological report on appeal which detailed the appellant’s change since treatment. The majority allowed this report in as it was not disputed.18 Glazebrook and William Young JJ would not have
18 D (31/2019) v Police, above n 7, at [41] and [159].
admitted the updated report as considered risk had to be assessed at the time of sentencing, although William Young J couched this in terms of an appeal requiring there to be an error in the lower court’s sentencing approach.19 Regardless, this case can be distinguished as there is no evidence of Mr Brady’s risk having been reduced through treatment. Instead there is a submission that that will be the case. That cannot be a reason to disregard a factor that is relevant towards assessing his risk in the present case.
[34] Ms Jarvis accepted that Mr Brady poses at least a low risk of re-offending. I agree Mr Brady at this point continues to pose at least a “low risk” to the lives and sexual safety of children in the community. On the evidence the appropriate assessment is in my view “medium low”.
[35] The second stage of analysis therefore must be considered. This requires considering the nature and seriousness of the risk posed, and whether registration will achieve anything. Ms Jarvis submitted that the offending took place because of specific circumstances, involving Mr Campbell, that led up to it. In her submission, the risk of Mr Brady’s finding himself in those circumstances again is negligible. Therefore the utility of the reporting requirements would not outweigh the interference with Mr Brady’s rights and freedoms.
[36] However, the reports make clear that the risk is broader than Ms Jarvis suggests. Mr Neilson identified risks associated with Mr Brady’s view of the offending and his poor emotional regulation. Ms Isaacson’s report identified that warning signs of offending would be Mr Brady returning to an unstructured lifestyle dominated by substance abuse, accommodation instability and a lack of community support. These are factors that could well occur in Mr Brady’s life again if he does not have the restrictions involved through registration.
[37] In previous cases, such as D (SC31/2019) v Police, C v Police and Smith v R), the Court did not order registration because of the large number of restrictions placed
19 At [262] per Glazebrook J and at [307]–[308] per William Young J.
on registered offenders that are not relevant to the risk the particular offender posed.20 In many such cases, offenders were convicted of internet-related offences where they possessed child pornography. The reporting requirements, as noted by the Supreme Court, have limited utility in monitoring the offender in that situation, as they cannot be used to monitor an offender’s use of the internet.21 They have a role, however, in identifying the offender if they commit another internet-related offence. This case is different. Mr Brady has not committed an internet-based offence, but one involving physical interactions. His risk factors include whether his life is structured and whether he has stable accommodation. Ms Jarvis responsibly recognised that freedom of association as a risk for Mr Brady, which some of the reporting requirements of registration (such as in s 16(1)(d)–(f) and (i)) can address. The reporting requirements associated with registration will be able to monitor those factors. I consider there is a distinct utility in limiting Mr Brady’s rights in this way. It is a justified response when considering the seriousness of the risk he poses. Put another way, the gravity of his offending justifies the degree of interference with what would otherwise be his freedoms.
Outcome
[38]The order that Mr Brady be registered was appropriate.
Orders
[39]I grant leave for Ms Isaacson’s report to be admitted in evidence.
[40]I dismiss the appeal.
Osborne J
Solicitors:
Crown Solicitor, Christchurch
Public Defence Service, Christchurch
20 D (SC31/2019) v Police, above n 7; C v Police [2021] NZHC 3384; and Smith v R [2022] NZHC 46.
21 D (SC31/2019) v Police, above n 7, at [111] and [134].
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