HUTCHISON v R

Veen v the Queen (No. 2) (1988) 164 CLR 465 R v McNaughton (2006) 163 A Crim R 381 Tidona v R [2005] NSWCCA 410 R v Aboud [2005] NSWCCA 251 R v Groat [2001] NSWCCA 452 R v Fernando [2002] NSWCCA 28 R v Thomson ; R v Houlton [2000] NSWCCA 309 ; 49 NSWLR 383 R v Mulato [2006] NSWCCA 282 CASES CITED : R v Forbes [2005] NSWCCA 377 ; 160 A Crim R 1 R v Troja NSWCCA 16 July 1991 R v Morabito (1992) 62 A Crim R 82 R v Maguire NSWCCA 30 August 1995 R v Forbes [2005] NSWCCA 377 R v Hopley [2008] NSWCCA 105 R v Irvine [2008] NSWCCA 273 R v Greenhalgh [2001] NSWCCA 437 R v Hamilton [2007] NSWSC 452

PARTIES: Nathan George Hutchison - Applicant Regina - Crown Respondent

COUNSEL: E Wilson - Applicant D Arnott SC - Crown Respondent

SOLICITORS: Aboriginal Legal Service - Applicant S Kavanagh - Solicitor for Public Prosecutions - Crown Respondent

IN THE COURT OF CRIMINAL APPEAL 2008/20725

BEAZLEY JA HULME RS J LATHAM J

11JUNE 2010 NATHAN GEORGE HUTCHISON v R Judgment 1 BEAZLEY JA : I agree with Latham J. 2 HULME RS J : In this matter I have had the advantage of reading the reasons for judgment of Latham J. I agree with much that her Honour has said, however, there are a few matters with which I disagree. Firstly, I am persuaded that the error made by Blackmore DCJ as to the Applicant's record probably did influence the sentence his Honour imposed. Having referred to what he perceived the Applicant's record to be, his Honour referred to that record as "an extraordinary criminal history" observing later that:- "The maximum penalty for the offence is 25 years imprisonment. In my view the offender had so significantly abandoned responsibility as demonstrated by his commission of the offence, in the context of his prior offending, the sentence must emphasise specific deterrence". 3 The error his Honour made concerning the Applicant's record - of attributing to him almost twice the number of assaults as were on that record, 12 instead of 7 - was substantial. Given the tone of the remarks just quoted, I find it impossible to conclude that the sentence imposed was not influenced by the error. 4 I am also of the view that his Honour's perception of the Applicant's assault on the deceased was inaccurate. Although the Applicant inflicted two blows, one of which his Honour accepted was in self defence, his Honour described the Applicant's response as "extreme and violent". Later after referring to the fact that the Applicant's "assault broke the nose of the deceased and was of sufficient force to knock him to the ground" his Honour went on to say:- "Given the ferocity of the assault, I would estimate that the objective seriousness of the offence falls just below the middle level of objective seriousness for the offence of manslaughter. " 5 In a number of physical sports noses are not infrequently broken. The deceased had a blood alcohol level of 0.184. There was no evidence that his fall was not in part attributable to his degree of intoxication. While his Honour was undoubtedly accurate in describing the Applicant's blow as violent, there was no justification for the characterisation inherent in the words "extreme" and "ferocity". 6 It is clear that these errors also influenced the sentence imposed. For my part I regard it as impossible to conclude that one unpremeditated punch could justify the conclusion that the Applicant's offence fell just below the middle level of objective seriousness. 7 However, one punch was not the only causal factor in the deceased's death. Notwithstanding the error made by Blackmore DCJ as to the number of the Applicant's past convictions for assault, the remarks his Honour made in the following paragraph were fully justified. "The Courts have by their past orders attempted to modify the behaviour of the offender. He has been given bonds with supervision, and sentences of imprisonment that vastly favoured periods of parole over imprisonment, all to no avail. The offence was committed just over two months from the end of his last sentence, for offences of assault. Frankly, the history is one of continuing and escalating disobedience to the law, without any apparent regard to the damage that he was wreaking along the way. He has shown up to the date of the offence, no inclination to ameliorate his alcohol abuse, whilst at the same time recognising as he said in evidence, that when he drinks he becomes aggressive. And what has resulted by his behaviour is the death of the deceased. The assault committed by the offender in this case is not an event that occurred out of the blue without prior warning to him. To the contrary, the assault by the offender on the deceased, appears to have been entirely predictable." 8 A substantial cause of the deceased's death was the Applicant's disposition to become violent when drunk and, knowing of that fact, to drink until he was drunk on the night in question. To, as it were, make of himself a stick of gelignite with the fuse lit was as criminally irresponsible as the actual blow. When account is taken of this factor also, I am satisfied that, despite the errors I have found, no lesser sentence should have been imposed. 9 I agree with the orders proposed by Latham J. 10 LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Blackmore SC DCJ (the Judge) on 3 April 2009, following a plea of guilty to Manslaughter. That offence carries a maximum penalty of 25 years imprisonment. 11 The Judge imposed a non parole period of 5 years and 6 months, with a balance of term of 2 years. The basis of the plea was an unlawful and dangerous act, constituted by the applicant punching the deceased, causing him to fall to the ground and fracture his skull. 12 The applicant asserts two errors in the sentencing proceedings, namely, an overstatement of the applicant's criminal history, which was then taken into account as an aggravating feature, and a finding to the effect that the applicant's prospects of rehabilitation are "virtually non existent". In addition, the applicant maintains that the sentence is manifestly excessive.

The Offence 13 The applicant was staying at the Commercial Hotel in Wallerawang whilst working as part of a gang on railway lines in the area. In the evening of the commission of the offence, the applicant and his work friends had consumed a considerable amount of alcohol, as had the deceased. 14 The applicant first met the deceased at the Royal Hotel some time after 8 pm, at which time the applicant's conduct provoked a response from the deceased which escalated to a confrontation outside the hotel. The applicant and the deceased argued and a friend of the applicant struck the deceased to the back of his head behind his left ear. The applicant intervened and the confrontation ended with all involved shaking hands. The applicant and the deceased then walked to the Commercial Hotel together. 15 They arrived at the hotel at 11:40 pm. They consumed more alcohol in the hotel in the company of other males. Both the applicant and the deceased separately engaged in aggressive conduct towards others. At some point, the deceased became involved in a fist fight with two members of the applicant's work gang. The applicant escorted those members of his work gang outside the hotel and they returned to their cabins. The applicant went back inside the hotel, taking the deceased with him into the toilet to wash blood from his face. After returning from the toilet, the applicant and the deceased were alone in the main bar. One of the publicans saw a reflection in a mirror of both men "with their hands on each other's head". He then saw the deceased lying on his back on the floor with blood coming from his nose. The applicant stated "He hit me first". An ambulance arrived shortly after midnight and temporarily resuscitated the deceased but he was pronounced dead at 9:30 am from fractures of the skull, with subdural haemorrhaging as a result of his fall to the floor. 16 The applicant left the hotel shortly after striking the deceased and went to his work colleagues. The applicant said to one of them "I have hurt him, I need to see my kids before I go to gaol" and to another "I think I hit him pretty hard". He was driven to Mudgee where his partner met him. The applicant told his partner that the deceased had provoked him by punching him in the forehead. 17 The applicant's evidence on sentence established that he hit the deceased twice, namely with a left and then a right punch. The first punch was in response to a glancing blow from the deceased. It was accepted by the Judge that the applicant legitimately believed that he needed to defend himself at this point in time. The applicant conceded that the second blow was the likely cause of a fracture to the deceased's nose and was excessive in all the circumstances. The Judge found that the second blow was not delivered in self defence. No issue is taken with that finding.

Ground 1 : The Judge Overstated the Severity of the Applicant's Criminal History and Took it into Account as an Aggravating Factor. 18 The Judge referred to 9 past offences of assault and 3 of assault occasioning actual bodily harm, when discussing the applicant's criminal history. The true position was that the applicant had committed 5 assault offences as an adult and 2 assaults occasioning actual bodily harm as an adult. That much is conceded by the Crown. However, it is the second limb of this ground that must succeed if the applicant is to establish error warranting the intervention of this Court. 19 In order to appreciate this ground of the appeal, it is necessary to set out at length the Judge's remarks in relation to the applicant's criminal history :- The offender had at the date of this assault accumulated a lengthy criminal history, and it is notable that the history contains many other offences of assault. [The Judge then refers to the criminal history in detail, albeit erroneously.] ………………………………………………………………………… This is an extraordinary criminal history for a man who is only 33. It should be noted that there are many other entries on his history as well, some of which suggest aggressiveness is his default position. For example, he has a number of entries for breaching apprehended violence orders. A number of entries for resisting police in the execution of their duty, and offences of stalking and intimidating people. The courts have by their past orders attempted to modify the behaviour of the offender. He has been given bonds with supervision, and sentences of imprisonment that vastly favoured periods of parole over imprisonment, all to no avail. The offence was committed just over two months from the end of his last sentence, for offences of assault. Frankly, the history is one of continuing and escalating disobedience to the law, without any apparent regard to the damage that he was wreaking along the way. He has shown up to the date of the offence, no inclination to ameliorate his alcohol abuse, whilst at the same time recognizing as he said in evidence, that when he drinks he becomes aggressive. And what has resulted by this behaviour is the death of the deceased. The assault committed by the offender in this case is not an event that occurred out of the blue without prior warning to him. To the contrary, the assault by the offender on the deceased, appears to have been entirely predictable. 20 The Judge then goes on to correctly state the limitations imposed by s 21A(4) of the Crimes (Sentencing Procedure) Act 1999 on the use to which a criminal history may be put in the course of sentencing. The Judge also referred to Veen v the Queen (No. 2) (1988) 164 CLR 465 at 477 to 478. Further, the Judge referred to this Court's decision in R v McNaughton (2006) 163 A Crim R 381, concluding with this observation, namely :- In this case the offender's prior criminal record entitles him to no leniency whatsoever. To the contrary in my view, his continuing disobedience of the law as demonstrated by his continuing offending, enhances the consideration of retribution, deterrence and protection of society such that in this case a significantly more severe penalty is warranted. 21 All of the remarks regarding the applicant's seemingly easy resort to aggression, his failure to benefit from past periods of supervision and the legitimate way in which a criminal history may influence the sentence to be imposed, were entirely correct and appropriate, notwithstanding the error in recounting that criminal history. The applicant does not assert any other patent error. 22 The applicant's submission is that the sentence imposed upon him was "so high that the erroneous criminal history must have been taken into account as an aggravating factor", despite the Judge expressly declaring that he had not done so. Later in his remarks, the Judge assessed the objective gravity of the offence as just below the middle level for the offence of manslaughter and noted that "in making that assessment, I have not considered the offender's prior criminal history". 23 None of the authorities relied upon by the applicant on this ground of the appeal assist the applicant's argument. Tidona v R [2005] NSWCCA 410, R v Aboud [2005] NSWCCA 251, and R v Groat [2001] NSWCCA 452 all concern patent error on the part of the sentencing judge, that is, where a previous conviction was specifically referred to as an aggravating feature. 24 This Court should be extremely slow to infer error on the part of a sentencing judge who has addressed the issue in the remarks on sentence and expressly disavowed the approach taken up in this Court as the basis of a ground of appeal. There is no merit in the first ground.

Ground 2 : Error in the Assessment of the Applicant's Prospects of Rehabilitation. 25 The applicant's complaint on this ground is that the Judge's assessment of his prospects of rehabilitation was wrongly confined to the applicant's progress in addressing his abuse of alcohol, rather than also taking account of the applicant's success in overcoming his addiction to drugs. 26 Once again, it is critical to a determination on this ground to place the Judge's finding in its proper context. On this subject, the Judge said :- The offender has a long history of drug use and alcohol use. This started after he first left home, but escalated around the age of 17. When 24 he started using heroin. He said in evidence that he stopped using heroin around the age of 30, and he has not used it since. On the other hand, he has continued excessive use of alcohol. He said to the psychologist that he knew that in future he must be completely abstinent from alcohol. He told her he was prepared to undertake comprehensive drug and alcohol counselling programs, both in custody and when released. Of course I note, that he had been directed to undertake such counselling on numerous other occasions, when he was dealt with by the courts and either did not undertake the counselling or if he did, it had no effect. I doubt that his expression in evidence now and to the psychologist about his willingness to undertake counselling for excessive alcohol use could realistically be accepted as honest. And even if he is being honest, I do not accept that his account is reliable. It is his alcohol misuse that appears to be the root cause of much of his aggressiveness, which has led to his offending. Due to the fact that I cannot accept his assertions that he will in fact be abstinent from alcohol, I do not accept that he has reasonable prospects of rehabilitation from alcohol use based on these assertions. [The Judge then dealt with the applicant's expressions of remorse.] It was also submitted that he had good prospects of rehabilitation and this is another basis for finding special circumstances. In my view that has not been established. He has not dealt in any meaningful way with his excessive use of alcohol. He may have reached a realisation prior to the commission of the offence that alcohol had the effect of making him aggressive, but despite that, he drank to excess on the night of the offence. The fact that he realises that when drinking he gets aggressive, is of no significance if he is unable to control his use of alcohol. There is nothing to demonstrate that he is able to control that use, and consequently his present prospects of rehabilitation are virtually nonexistent. 27 The applicant submits that his prospects of rehabilitation could not be described as "virtually nonexistent" when one has regard to the applicant's evidence and the psychologist's report tendered on his behalf. In the course of his evidence, the applicant spoke of his use of amphetamines and heroin between the ages of 17 and 24. The negative impact of his drug abuse upon his life and those of his family was the subject of other evidence (Ex 1). As the Judge noted, the applicant stopped using heroin and amphetamines at 30 years of age, and while he was drinking alcohol to excess over this period of time, he considered his drug abuse to be the principal problem. The cessation of drug use coincided with the applicant's release from prison in 2007, at which time he was drug-free. 28 The psychologist noted that "it is only since he has been in custody that [the applicant] has addressed his alcohol consumption and considered it to be problematic. He says the night of the offence was by far 'the most drunk' he has ever been since he was released from gaol in 2007. However he acknowledged his inability to control his intake of alcohol particularly spirits once he and his workmates began shouting each other." 29 It follows from the applicant's evidence that in the 8 months between his release from custody on 17 September 2007 and the commission of the offence, the applicant had done nothing to moderate his alcohol consumption, despite acknowledging that the excessive consumption of alcohol had contributed directly to the commission of drink-driving offences and to the commission of assaults in August and September 2006. In fact, the applicant acknowledged in cross-examination that his release from prison in 2007 coincided with an increased consumption of alcohol, no doubt in part to compensate for the absence of drugs. 30 It is true that the Judge made no mention of the applicant's previous abuse of amphetamines, but it is clear from the remarks on sentence that the Judge was well aware of the contents of the Pre Sentence Report and of the psychologist's report. It is not incumbent on a sentencing judge to refer to every aspect of an offender's life history, particularly when there are features of that history that bear no relationship to the commission of the offence for which the offender stands to be sentenced. In this case, the applicant's violent conduct, and his capacity to guard against the possibility of that conduct recurring in the future, were directly linked to his abuse of alcohol. In that sense, the applicant's prospects of rehabilitation had little or nothing to do with his ability to refrain from abuse of drugs. 31 The applicant further submits that his plea of guilty, his expressions of remorse and his comprehension of the importance of refraining from alcohol consumption, signify his potential for rehabilitation ; see R v Fernando [2002] NSWCCA 28 at [49] to [60] ; R v Thomson ; R v Houlton [2000] NSWCCA 309 ; 49 NSWLR 383. That is theoretically the case, according to the Chief Justice in each of those authorities. In Fernando at [53], the Chief Justice acknowledged that a decision to refrain from drug abuse represents "the crucial first step in a process of rehabilitation", yet it is "only indicative of the possibility of success". In Thomson and Houlton at [116], the Chief Justice explained why expressions of remorse are concerned with the circumstances of the offender, and have no bearing upon the administration of justice for the purposes of determining the extent of the discount for a plea of guilty. The statement that expressions of remorse "indicate that the prospects of rehabilitation are good" was made in that context and ought not be taken, in my view, to mean that every expression of remorse necessarily requires a finding to that effect. 32 In the light of the applicant's belated realisation that his alcohol consumption was problematic, despite the role that alcohol consumption played in his past offending, the Judge was entitled to be circumspect about the applicant's professed willingness to reform. The Judge's finding on the applicant's prospects of rehabilitation was open to him. Accordingly, this ground fails.

Ground 3 : The Sentence is Manifestly Excessive. 33 There are effectively three discrete errors on the part of the Judge that the applicant relies upon in support of this ground. The first is that the Judge's misstatement of the applicant's criminal history resulted in a disproportionately high sentence because of a perceived need for a measure of community protection. The second is that the finding that "the offender's response was extreme and violent" was not justified. The third is that the objective gravity of the offence was not just below the middle of the range, rather it was towards the lower end of the range. 34 There is no basis for concluding that, but for the misunderstanding of the applicant's criminal history, the Judge would not have concluded that community protection was a factor in the sentencing exercise. The full context of that finding was as follows :- However, there are many conflicting principles in sentencing. Assuming the correctness of the submission of counsel with respect to the range of sentence as revealed by the cases to which I have been referred, in my view those cases do not address the offender that I am now sentencing. The maximum penalty for the offence is 25 years imprisonment. In my view the offender had so significantly abandoned responsibility as demonstrated by his commission of the offence, in the context of his prior offending, this sentence must emphasise specific deterrence. Moreover, the fact that I am unable to say that he is rehabilitated or even has reasonable prospects of being so rehabilitated, and given his prior dangerous propensities, the sentence here should also provide the community with a degree of protection from him. Finally, the community is entitled to retribution for the damage that he has done. 35 These remarks are an appropriate reflection of the purposes of sentencing enshrined in s 3A of the Crimes (Sentencing Procedure) Act 1999. There is no substance to the applicant's argument. 36 The Judge's finding in relation to the character of the applicant's response to being struck by the victim appears in the following passage :- The offender then claimed to police and again in evidence that the deceased swung a punch that hit him in the forehead. He said that it was a glancing blow. The Crown does not accept this account. The offender gave evidence that he punched the deceased twice after the deceased had hit him. In effect the offender says that he punched the deceased in self-defence, although he accepts that the second punch was excessive and therefore not in self-defence. …. As noted, no one was present during the incident that led to the deceased been knocked to the ground. However, almost immediately thereafter the offender was heard to say that the deceased punched him first. It was plain that both the offender and the deceased had consumed a large amount of alcohol by this stage. For the offender to spontaneously respond untruthfully, by saying what he did, seems unlikely in my view. His response that the deceased punched him first is consistent with his account in his evidence and I accept on the balance of probabilities that the account is true. Having said that, the offender's response was extreme and violent. Both men may have been drunk and objectively been large men but that is where the similarities between them appear to end. In evidence before me the offender admitted that he is someone who was willingly prepared to fight, he was to be a participant in a fight night to be organised by a boxing promoter. He also admitted that he was aware that when he consumes alcohol, he has a tendency to be aggressive. On this night he had already threatened to fight with the deceased and later hit one of the other men in the group, knocking him to the ground, after he had kicked a hotel door. Further, at the time of committing this offence, the offender knew that he had previously been dealt with criminally for assaulting people when he was drunk. 37 I can discern no error in describing the applicant's conduct, in response to a glancing blow from the deceased, as extreme and violent. It was undoubtedly violent. Whether it was extreme or merely excessive are matters of degree. The blow was sufficiently forceful to break the deceased's nose. It was open to the Judge to find that the applicant's response was an extreme one in the circumstances that confronted him, namely, an ineffective and fleeting show of force from a very drunk man. 38 The applicant's counsel, who appeared both at the sentencing proceedings and on the appeal, submits that the offence fell towards the bottom of the range. It was suggested on sentencing that the starting point, before the application of a 25% discount for the plea, ought to have been 6 years imprisonment. That submission was rejected by the Judge in the exercise of his sentencing discretion. The nominal starting point, namely 10 years imprisonment, is consistent with the Judge's assessment that the offence was more properly characterised as just below mid range.

39 In R v Mulato [2006] NSWCCA 282, the Chief Justice and Simpson J made the following observations at [37] and [46] respectively :- Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which [the Judge] gave to the circumstances of the offence was open to [the Judge]. The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance. 40 The applicant does not claim that the Judge took account of extraneous or irrelevant matters in reaching his assessment, or that some other error is apparent (bearing in mind that the applicant's first ground of appeal has no substance). Therefore, before this Court could intervene to set aside that assessment, the applicant must persuade the Court that it was an unjust or unreasonable one. 41 The basis for the Judge's assessment was the fact that the offender seriously and ferociously assaulted the deceased, breaking his nose and knocking him to the ground. The Judge noted that the offence was clearly well removed from "a joke gone wrong", referring to the Chief Justice's description of manslaughter offences at the very bottom of the range, in R v Forbes [2005] NSWCCA 377 ; 160 A Crim R 1. 42 I am not persuaded that the Judge's assessment was an unreasonable one. The Judge was entitled, in assessing the objective gravity of the offence, to take account of the fact that the act causing death came at the end of a sustained course of aggressive conduct on the applicant's part, albeit not all of it directed at the deceased. The Judge impliedly determined that the applicant's moral culpability for the offence was, for that reason, higher than might be attributed to an intoxicated offender who struck a single blow. 43 I turn to the submission that the sentence is manifestly excessive. Whilst acknowledging the many decisions of this Court that draw attention to the wide variability of the offence of manslaughter and the difficulty, for that reason, of identifying any reliable range of sentence, the applicant nonetheless referred the Court to 12 decisions, including 7 at first instance, in support of the contention that the sentence imposed upon the applicant is outside the range of a proper sentencing discretion. Before reviewing those cases, it should be stressed yet again that comparison with other cases and resort to the Judicial Commission statistics are of limited assistance where the offence of manslaughter is concerned : R v Troja NSWCCA 16 July 1991 ; R v Morabito (1992) 62 A Crim R 82 ; R v Maguire NSWCCA 30 August 1995 ; R v Forbes [2005] NSWCCA 377. 44 The 12 cases relied upon by the applicant, all involving pleas of guilty to manslaughter with the exception of R v Hopley [2008] NSWCCA 105, span the years from 1999 to 2008. The lowest sentence imposed (R v Irvine [2008] NSWCCA 273) is one of 3 years periodic detention, for a single blow struck in self defence by a 20 year old with no prior convictions (in circumstances where the victim suffered from a congenital abnormality that contributed to his death), whilst the highest is one of 6 years and 9 months imprisonment (R v Greenhalgh [2001] NSWCCA 437) for a number of blows struck by a 37 year old intoxicated offender with a prior custodial history. It should be noted however, that this Court determined in the latter case that the judge's starting point of 9 years was appropriate in the circumstances, but that an error had been made in the application of the discount for the plea.

45 The applicant's submission seeks to compare and contrast the penalties imposed in these 12 cases, all involving one or more blows, absent the use of a weapon and absent an intention to kill or inflict serious injury, with the penalty he received. The applicant's analysis is, however, flawed. It concentrates exclusively on the objective features of these offences and ignores the important part played by the relevant subjective material in each case in the synthesis of objective and subjective factors that ultimately produces a sentence appropriate to the individual offender. 46 Two cases in particular illustrate the point. The applicant seeks to draw an analogy with R v Irvine (supra) and with R v Hamilton [2007] NSWSC 452, each based upon excessive self defence. I have already noted the very favourable subjective circumstances and somewhat unusual vulnerability of the victim in Irvine. In Hamilton, the offender was of borderline intelligence and had been threatened by the victim with a knife. Moreover, he had no prior convictions for offences of violence. The offender in that case received a sentence of 5 years and 6 months, following a finding that the offence was in the low range. 47 Having regard to the comments of this Court in Greenhalgh, the applicant has not established that the sentence he received is manifestly excessive. It may be accepted that it is a sentence towards the top of the range, but that is not sufficient for the purposes of this ground. 48 I propose that leave to appeal be granted, but that the appeal be dismissed. **********

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