Hach v The Queen [2018] VSCA 196

1 The applicant pleaded guilty to one charge of arson. That offence carries a maximum period of 15 years imprisonment.[1] He was sentenced to 12 months imprisonment and a community correction order (CCO) of five years duration with attached conditions. The sentencing judge declared that, but for his plea of guilty, she would have sentenced him to a period of five years imprisonment with a non-parole period of three years.[2]

2 The applicant raises two proposed grounds of appeal.

3 By ground 1, the applicant contends that the combined sentence imposed on him was manifestly excessive. He bases this ground of appeal upon the following matters:

(2) He pleaded guilty at the earliest opportune moment.

(3) He was at all times cooperative with police and made full admissions.

(4) The CCO 'operates punitively for each and every day for which it is in operation'.

4 By ground 2, the applicant contends that the sentencing judge made a specific error in imposing a CCO of five years duration on him, which is the maximum duration permitted by s 38(1)(b) of the Sentencing Act 1991. In substance, the applicant contends that it was not open to the sentencing judge to impose this maximum period in circumstances where the sentencing judge:

(1) did not first invite counsel to address on the duration of the CCO;

(2) had no evidentiary basis upon which to form a view that five years duration would facilitate the applicant's rehabilitation; and

(3) had already ordered 12 months imprisonment as a punitive sentence and, accordingly, the CCO did not require a punitive element.

5 Before turning to the circumstances of the applicant's offending and other facts relevant to the imposition of the combined sentence on him, we note that it is the duration of the CCO which lies at the heart of both proposed appeal grounds.

6 Prior to offending, the applicant was employed by a waste management company at its depot in Wodonga, Victoria. The applicant's immediate supervisor was Garry Vallarta, the regional manager in charge of the Wodonga depot.

7 Prior to the day he offended, the applicant had been on sick leave from his employment for about four weeks. He had been suffering from depression for many years and had attempted suicide for the sixth time. On the day in question, he was released from a mental health care facility with a medical certificate stating he had been incapable of work up to and including that day. In these circumstances, the applicant assumed that he would be able to re-commence working the next day. To that end, he telephoned Mr Vallarta and left a message. Mr Vallarta called the applicant later that day while he was in his car with his wife and two young children aged 1 and 3 years. His mobile phone was on the speaker in the car. During the conversation, Mr Vallarta told the applicant that he could not return to work unless he produced a medical certificate stating that he was capable of doing so. The applicant did not have such a certificate and became angry and argumentative. Mr Vallarta was so concerned for his safety after the phone call that he contacted the police and arranged for an intervention order to be taken out against the applicant.

8 In these circumstances, full of unjustified anger, the applicant went to the waste management facility at about midnight that day. He took with him a 10 litre petrol container. He broke into the depot and walked over to four large trucks parked in a line. Using a rock, he broke a window on two of the trucks and poured petrol through the broken windows into the cabin of each truck. He then set the two trucks on fire. Both were totally destroyed, and the fire also spread to the two adjoining trucks - which were also destroyed. The two trucks which the applicant had intended to, and did, destroy by fire were valued at approximately $700,000 in total.

9 The applicant was, however, charged with arson of the two trucks only.

10 Given the background of the conversation with Mr Vallarta earlier that day, and other evidence it is unnecessary to refer to, it is unsurprising that the police easily identified the applicant as the arsonist and he was arrested. He made full admissions when first interviewed, giving police a detailed description of what he had done. However, although he was very cooperative, he showed no remorse of any kind. To the contrary, he told police that he wanted to get back at Mr Vallarta by his actions, hoping Mr Vallarta would be sacked from his job and would lose money as a result. Moreover, the applicant said that he did not care about the damage he had caused, because he wanted to cause loss to his previous employer.

11 In all these circumstances, the sentencing judge quite rightly described the applicant's offending as of a most serious kind. Subject to mitigating factors, including the applicant's personal circumstances, a stern sentence was called for in respect of offending carrying a maximum term of 15 years' imprisonment. However, having regard to the applicant's plea of guilty, his lack of any prior relevant convictions, his immediate cooperation with police and his personal circumstances - and following a pre-sentence report requested by the sentencing judge - a short term of imprisonment and a CCO were imposed on the applicant.

12 We turn to consider the applicant's personal circumstances.

13 To say the least, the applicant had a troubled early life. Unsurprisingly, a number of psychological problems resulted. In summary, the applicant never knew his father, and his mother had significant drug and alcohol issues. His childhood was disrupted by constant changes of location throughout Australia, his mother's drug and alcohol issues, and violence towards him by both his mother and men with whom she would associate. As a result, the applicant fled from his mother at about 13 years of age. He was either homeless or in institutionalised care until he was about 16 years of age. He then commenced residing with his uncle, who provided him with food, accommodation and emotional support.

14 The applicant had difficulties in schooling, particularly due to his constant movement, and initially left school about halfway through Year 8 when he was residing in Queensland. To his credit, he later completed a Year 10 equivalent course at TAFE, and then an apprenticeship as a carpenter. He was successful in obtaining work in Dandenong, but later organised to be transferred to Wodonga so that he could be closer to his then partner and their children.

15 The applicant's relationship with his previous partner was not continuing at the time of his offending; but she is generally supportive of him. He has three young children with her and is keen to see them.

16 The applicant has a long history of abusing alcohol from an early age. By the time of his offending, he would typically drink approximately 18 standard drinks every day. Further, in the months leading up to his offending, he abused the drug morphine (without obtaining a prescription) on a regular basis. In a clinical and forensic psychologist's report prepared for his plea, the following opinions were expressed:

Mr Hach reported a history of problematic use of alcohol and morphine. His use of alcohol is sufficiently severe to meet the DSM-5 diagnostic criteria for Severe Alcohol Use Disorder. Mr Hach's purchasing of opiates on the 'black market' and his lack of insight into the physical and psychological causes and consequences of his drug use, represent an increased risk of further drug use and an increased risk of violence and crime.

...

The most salient feature of Mr Hach's mental state when I assessed him was moderate depressive symptoms.... His symptoms are sufficiently severe to meet the DSM-5 diagnostic criteria for Adjustment Disorder with depressed mood. His multiple suicide attempts indicate that Mr Hach readily reacts to emotional distress with suicidal behaviour, and there is a clear need for his mental health and safety to be monitored and managed. The prescription of antidepressant medication seems warranted.

A detailed assessment of Mr Hach's interpersonal and behavioural adjustment indicated a pattern of emotional and interpersonal instability, and impulsive and reckless conduct. Mr Hach is highly sensitive to potential threats to his autonomy and power. In response to interpersonal conflicts, Mr Hach readily resorts to aggression and violence, with little regard for the rights of others. Mr Hach's maladaptive interpersonal and behavioural traits are sufficiently severe to meet the DSM-5 diagnostic criteria for Antisocial Personality Disorder, with evidence of a childhood Conduct Disorder. He is also noted as possessing prominent features of Borderline Personality Disorder.

A violence risk assessment utilising the HCR-20 identified a broad range of risk factors that represent a risk of violence to the community. The most prominent criminogenic factors that require intervention are his alcohol use, his emotional distress, his lack of insight, and his personality disorder.[3]

17 The psychologist's report concluded with the following comments and recommendations:

To minimise his risk of violence and to maximise his prospects for successful rehabilitation, the following treatments are recommended:

SUBSTANCE ABUSE TREATMENT

• A period of closely monitored and supervised detoxification, including routine screening to ensure abstinence is maintained, with clear consequences for non-compliance;
• Ongoing drug and alcohol treatment which aims to increase insight into his substance use issues, including an understanding of the underlying motivations and emotions that trigger and perpetuate his substance use;
• Relapse prevention training to help Mr Hach develop strategies to ensure that abstinence is maintained.

• Treatment of his depressive symptoms by means of anti-depressant medication;
• Offence-specific treatment to develop insight into his behavioural, interpersonal, and substance-related problems and their involvement in his offending behaviour;
• Coping skills training to enhance his capacity to cope with intense emotional reactions without resorting to self-harm, suicide, or violent behaviour;
• Anger management training to enhance his awareness of the triggers to his anger, and developing his capacity to regulate anger, including the development of conflict resolution skills, and broadening of his repertoire of behavioural responses.[4]

18 There was an initial plea hearing in November 2017. The sentencing judge recorded that the 'thrust of the plea' was that the applicant should be sentenced to a term of imprisonment equalling the amount of time then served 'together with an onerous [CCO]'.[5] This characterisation of the plea made on behalf of the applicant is consistent with the applicant's written submissions for the plea, which specifically sought a very short period of imprisonment (at that time the applicant had served 10 days' pre-sentence detention) and repeated the submission that 'an onerous [CCO] [be imposed] as the appropriate disposition'.[6] We emphasise that the applicant himself sought a CCO in terms recognising that it would be an 'onerous' one. Further, after referring to the applicant's mental health conditions and relying upon them to moderate the sentence on Verdins principles, the written plea submissions stated:

If the Court is of the view that the principal emphasis for [the applicant] at this stage is to encourage rehabilitation and engagement with appropriate mental health agencies, where he may develop insight to his behaviour, there may be suitable conditions under a CCO that would encourage rehabilitative progress such as mental health assessment and treatment, drug and alcohol programs, men's behavioural change programs, and judicial mentoring. Additionally, any punitive aspect of a CCO could be completed through an appropriate work condition ...'

19 These submissions were based upon the guideline judgment of this Court in Boulton v The Queen,[7] where, among other things, this Court stated that a CCO operates punitively, and it may be appropriate to impose a CCO for relatively serious offences which would previously have attracted quite substantial terms of imprisonment.[8]

20 Based on the evidence before the sentencing judge at this time, however, there were troubling matters which caused her to order a further psychiatric report before determining whether this was an appropriate case for the imposition of a combination of a short term of imprisonment and a CCO. The further hearing of the plea was adjourned to enable a further psychiatric report to be obtained.

21 The matters which concerned the sentencing judge at the initial plea hearing included a mix of matters both favouring and detracting from such a sentencing disposition. In the applicant's favour was his early plea of guilty, cooperation with police, lack of prior relevant convictions and the possibility of his reduced moral culpability for his offending as a result of the contribution of his mental illness to that offending. On the other hand, the sentencing judge noted concerning matters which indicated a possible lack of connection between the applicant's mental illnesses and his offending, and which otherwise gave rise to very guarded prospects for his rehabilitation. For example, the sentencing judge referred to the applicant's initial reluctance to engage in support or treatment for his alcohol and substance abuse and mental conditions, based on his belief that such services had not assisted him in the past. The judge noted, however, a moderation in that attitude by the time of the plea.

22 The principal matter which concerned the judge was the applicant's lack of any remorse, notwithstanding his plea of guilty. The judge noted that the applicant continued to speak in offensive terms about Mr Vallarta and maintained that his behaviour towards him was justified. Moreover, the applicant was apparently unconcerned at the level of his drinking and had no intention of reducing it.

23 Ms Wallace, who appeared for the applicant on this application - but not on the plea - contended that any lack of remorse was part and parcel of the applicant's mental health conditions. Whether or not that is so, the sentencing judge was obviously troubled by the lack of remorse in considering whether a CCO was appropriate.

24 Taking the evidence as it then stood as a whole, it is apparent that the sentencing judge ordered a further psychiatric report before deciding whether to accede to the applicant's request for a CCO, because at that stage the evidence disclosed that the applicant:

required significant monitoring and supervision in order to maintain any sort of treatment program with the aim of increasing [his] insight into [his] substance use and assisting [him] to develop strategies to treat [his] interpersonal and substance related problem[s].[9]

25 In the absence of a favourable further psychiatric report, the sentencing judge considered that the evidence before her at the initial plea hearing cast doubt on whether the applicant could be 'adequately managed in the community' under a CCO - and thus the only available option at the time appeared to be a significant prison term.

26 Reading the transcript of the initial plea hearing together with the sentencing reasons concerning it, it is obvious that the sentencing judge recognised that a primary sentencing consideration was the potential for the applicant's rehabilitation, with the resultant benefit of community protection.

27 The further psychiatric report was prepared by Dr Hemlata Ranga, consultant psychiatrist, Forensicare. Dr Ranga's report is dated 16 February 2018. By that time, the applicant had been in custody for some time awaiting sentence. Relevantly, the report contains the following matters.

28 First, the applicant's mood in prison was stable and he stated that the 'strict regimented routine in prison works well for him' - it was keeping him out of trouble and allowing him to manage his anger well.

29 Second, having reflected on his actions during his time in prison, the applicant acknowledged both guilt and remorse for his actions by that time.

30 Third, the applicant's self-reflection in prison had led to him recognising the need to: (1) seek support by means of appropriate therapy for his personality disorder; (2) continue using antidepressants; and (3) abstain from excessive alcohol intake and the use of illicit substances.

31 Fourth, the applicant was actively planning to return to work full time on his release from prison.

32 Fifth, in support of his intention to abide by any CCO conditions that he attend therapy sessions for his psychiatric conditions and his alcohol and substance abuse issues, and his desire to work full time, the applicant opposed any condition of a CCO that would require him to perform community work. The applicant's position in this regard shows some insight into the extent of the treatment conditions which were likely to attach to a CCO should one be imposed on him.

33 Sixth, Dr Ranga confirmed the diagnosis of borderline personality disorder, in the following terms:

Mr Hach presents with history of Borderline Personality disorder that manifests in form of chronic emotional dysregulation, impulsivity, poor sense of self, self-sabotaging and risk taking behaviors, frequent crisis and self-harm/suicidal behavior. In addition to this he also presents with anxiety and depressive symptoms intermittently. He has usually coped with this disorder by using illicit substance, opiates, and significant alcohol intake.

34 Dr Ranga completed her report in terms which concluded that, while the applicant could obtain the treatment he needed in either prison or in the community under a CCO, release into the community under the ongoing management of a CCO was preferable. She stated:

If released [into the] community on a CCO he will benefit with follow up with the services at mentioned above. He has complied with the bail conditions, and his engagement with the psychiatric services did improve after initial reluctance. Prolonged incarceration may lead to loss of skills, risk of institutionalization and risk of reoffending in future.

Access to his children, and contact with his partner and uncle will also be a motivating factor for him to engage with treatment program.

35 Dr Ranga's psychiatric report was considered at the adjourned plea hearing. Counsel for the applicant relied heavily upon it in support of the repeated submission that the most appropriate sentencing outcome was a period of imprisonment, limited to time already served (which by then was about 18 weeks), and a CCO to address the applicant's ongoing rehabilitative needs.

36 Following the sentencing judge expressing doubt as to whether a significant term of imprisonment and a non-parole period would better suit the applicant's obvious need for rehabilitation, counsel for the applicant contended that any doubt in the sentencing judge's mind should be resolved - consistent with the principle of parsimony - by choosing 'the CCO option, rather than a parole period'.

37 Counsel for the Crown made brief submissions. He acknowledged that some moderation of the sentence was required due to the applicant's mental conditions, including that allowance should be made for the fact that those conditions would make the applicant's time in custody more onerous than for a mentally healthy person.

38 As to whether a significant term of imprisonment and a non-parole period should be preferred over a short term of imprisonment combined with a CCO, counsel for the Crown simply submitted that either option was available to the sentencing judge in the exercise of her discretion.

39 Notwithstanding her continued misgivings about making a CCO, the sentencing judge ordered a pre-sentence report under section 8A(2) of the Sentencing Act 1991 as to whether the applicant was suitable for a CCO. That report was received by the judge after the adjourned plea hearing, but before she sentenced the applicant. The pre-sentence report assessed the applicant as suitable for a CCO, and recommended conditions requiring him to perform unpaid community work and undergo treatment - under supervision - for his mental health, drug and alcohol conditions. The applicant signed the pre-sentence report to indicate his consent to a CCO containing such conditions. The report contains no recommendation as to the length of the CCO.

40 The sentencing judge set out the circumstances of offending, the circumstances of the applicant, the course of the plea hearings and the expert psychological and psychiatric evidence. Although not raised by any ground of appeal, we note that the sentencing judge moderated her sentencing approach somewhat by reference to the applicant's mental condition at the time he offended and the consequent increase in the onerousness of any sentence of imprisonment on him.

41 The focus of the sentencing reasons was, as already noted, on whether or not a short term of imprisonment (the applicant contended time served was sufficient) and a CCO was the appropriate sentencing outcome. The sentencing judge noted her reservations about this, in light of the statement in the Forensicare Report by Dr Ranga that the strict regimen of prison was working well for the applicant and assisting him to manage his anger issues.[10] The sentencing judge expressed doubts as to whether the applicant had the capacity to comply with the requirements of a CCO while living in the community.[11] The judge expressly said that she 'found it very difficult' to reach a conclusion as to the best course to adopt in all the circumstances.[12]

42 In the result, as contended for by the applicant, the judge determined to apply the principle of parsimony and sentence the applicant to the 'lesser option' of a short term of imprisonment and a CCO.[13] In reaching this conclusion, the sentencing judge expressly stated that she was giving the applicant an opportunity to rehabilitate in the community, rather than in prison, because he was a first time offender.[14] Importantly, the judge concluded that she was persuaded that the applicant had good prospects of rehabilitation 'if the necessary supports are in place'.

43 As to the length of the CCO, the sentencing judge stated to the applicant that it would be 'of a lengthy duration in order to allow for the maximum assistance to you and will also provide some comfort on the issue of re-offending'.[15]

The applicant's agreement to the terms of the CCO

44 After the sentencing judge informed the applicant of his sentence, she explained the terms of the CCO to him. As part of that explanation, she noted that the applicant had expressed concern about a condition that he perform unpaid community work, and this had been recorded in the Forensicare report and the pre-sentence report. Although the judge told the applicant that 200 of the 500 hours of community work which formed part of the conditions could be counted in 'treatment hours', the CCO in fact provides that all treatment hours will be counted as hours of unpaid community work.

45 In any event, the judge informed the applicant that it was a matter for him as to whether he agreed to the imposition of a CCO. The applicant was then given the opportunity to discuss the conditions of the proposed CCO with counsel before formal orders were made. The applicant agreed to the terms of the CCO and signed a document recording its terms.

46 We proceed to consider the proposed grounds of appeal. For obvious reasons, we will deal with the second proposed ground first.

47 As we have already said, the applicant himself sought the imposition of a short term of imprisonment followed by a suitable CCO to promote his rehabilitation. The applicant complains, however, as to the five year period of the CCO. Specifically, he contends that:

(1) he was not given an opportunity to make submissions as to the duration of the CCO but, rather, the maximum period was simply imposed by the sentencing judge without her first inviting counsel to address her as to the appropriate term of the CCO;

(2) there was no evidentiary basis to support a five year CCO; and

(3) 12 months' imprisonment having been imposed, the CCO 'did not require a punitive element'.

48 As to the first contention, counsel for the applicant had every opportunity to make submissions as to the duration of the CCO which was sought on behalf of his client. It was counsel for the applicant who specifically asked the Court to impose a short term of imprisonment combined with a CCO, of an unspecified length, notwithstanding the seriousness of the offending. Reading the record of proceedings at the two plea hearings as a whole, the clear thrust of the applicant's contentions was an endeavour to persuade the Court to give him an opportunity to rehabilitate himself while in the community under a CCO. Given the applicant's recognised need for a variety of treatments for his longstanding psychological, alcohol and illicit drug issues, a lengthy CCO was clearly called for. That, like the length of a term of imprisonment or non-parole period, was a matter for the judge to determine in light of the seriousness of the offending and the plea material.

49 The applicant contends that the sentencing judge was required to invite the prosecutor and defence counsel to address on the appropriate period of any CCO. Reliance was placed upon the following statements in Boulton:

There was discussion in the course of argument of how difficult it is likely to be to make any reliable forecast of the period required to treat an offender, or of the offender's likely response to treatment. It seems inevitable, however, that the period required in any case will be a topic for submission by defence counsel and for qualitative response from the prosecutor. Clearly, those submissions should be as informed as possible.[16]

50 These statements do not assist the applicant. As we have said, there was a full opportunity to make submissions as to the duration of the CCO if defence counsel saw fit to do so. None were made.

51 Given that the appropriateness of making a CCO was the central issue for determination by the sentencing judge, it is open to infer that a deliberate decision was made to leave the length of any CCO to the judge to determine. As the transcript of the two plea hearings and the sentencing reasons demonstrate, the sentencing judge made it plain to the parties that she was uncertain as to whether to impose a short period of imprisonment combined with a CCO or to simply fix a period of imprisonment and a non-parole period. Any submission seeking to reduce the period of a CCO below the maximum might have prejudiced the applicant's aim of obtaining a CCO in lieu of a longer term of imprisonment.

52 Further, and in any event, reading the record of proceedings and all the evidence in it as a whole, it is apparent that the discussion between the sentencing judge and counsel for the applicant proceeded on the unstated assumption that, if the judge was persuaded to impose a CCO, it would be lengthy. It was unnecessary for the sentencing judge to 'invite counsel to address on the duration' of the CCO. If the applicant's counsel had done so, the prosecutor may have responded. Although such an approach is countenanced by Boulton,[17] there is a possible tension between that approach and the decision of the High Court in Barbaro v The Queen,[18] where the practice of inviting or allowing the parties, or at least the prosecution, to express a view as to the appropriate range of sentences in a given case was expressly disapproved. It is unnecessary to resolve any such tension here, as the applicant's counsel did not put forward any suggested period for a CCO; and there was thus nothing for the prosecutor to respond to.

53 As to the second contention, we acknowledge that this Court in Boulton stated that a sentencing court 'would be assisted by material specifically directed to [the appropriate length of a CCO]'.[19] In this case, however, there was an evidentiary basis for the imposition of a five year CCO. The evidence as a whole dictated that a lengthy CCO be imposed if the Court was persuaded to grant such an order. It is enough to refer to the broad range of problems for which the applicant requires treatment aimed at his rehabilitation, and the risk of his re-offending in the absence of lengthy supervision and treatment.

54 As Mr Sonnet, counsel for the Crown, emphasised, the applicant's problems were of long-standing duration and were well-entrenched - and had already resulted in six suicide attempts. In these circumstances we do not accept Ms Wallace's contention that Boulton requires the Court to have, in every case, specific assistance by evidence and submissions as to the duration of a CCO. Some cases, like the present, will obviously require a CCO of long duration to facilitate the rehabilitation aspects of the order.

55 As to the third contention, although every CCO operates punitively, rehabilitation, deterrence and community protection are equally important.[20] This approach is in the interests of the offender and the community. Thus, the complaint of specific error by including a punitive element in the CCO is rejected. Either the combined sentence of imprisonment and the CCO, when taken together, are manifestly excessive or they are not. We turn to consider the proposed ground of manifest excess.

56 The difficulty in establishing manifest excess as a ground of appeal against sentence has been repeatedly stated by this Court. It requires the Court to determine that the sentences were wholly outside the range of sentences reasonably available for this offending.[21] Such a finding does not depend upon identification of specific error. As the High Court stated in Dinsdale v The Queen:[22]

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than noncustodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

57 For reasons which will be obvious from what we have already said, this proposed ground has no prospect of success. This was serious offending. The sentencing judge had to balance the conflicting requirements of imposing a sentence reflecting the need for denunciation, specific deterrence, general deterrence and protection of the community, with the aim of rehabilitating the applicant if at all possible. The sentence imposed was well within the range of sentencing options available. It promotes both the need for just punishment and the need to facilitate the rehabilitation of the applicant to the maximum extent permitted by the CCO regime. The CCO conditions reflect that need.

[1] Crimes Act 1958 s 197(6).

[2] Sentencing Act 1991 s 6AAA.

[5] [2018] VCC 357 [30] (Sentencing Reasons).

[7] [2014] VSCA 342; (2014) 46 VR 308 (Boulton).

[8] Ibid (Appendix 1 - Guideline Principles) 374 [2], 376 [14].

[16] Boulton [2014] VSCA 342; (2014) 46 VR 308, 345 [167] (emphasis added).

[18] [2014] HCA 2; (2014) 253 CLR 58.

[19] Boulton [2014] VSCA 342; (2014) 46 VR 308, 344-5 [166], [168]-[170].

[21] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89].

[22] [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6].