HARRISON J: The applicant was committed for sentence on 5 June 2015 in the Gosford Local Court and came before the District Court at Gosford on 31 August 2015 to be sentenced for the ongoing supply of prohibited drugs between 23 December 2014 and 6 January 2015 contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is imprisonment for 20 years.
In sentencing the applicant, King SC DCJ took into account four further offences on a Form 1 as follows:
1. Supply prohibited drug, being 10.6 grams of methylamphetamine contrary to s 25(1) of the Act.
2. Possess prohibited drug, being 20.8 grams of cannabis, contrary to s 10(1) of the Act.
3. Possess unregistered firearm, being an air rifle, contrary to s 36(1) of the Firearms Act 1996.
4. Possess unregistered firearm, being an air rifle, contrary to s 36(1) of the Firearms Act 1996.
On 1 September 2015, the applicant was sentenced to 3 years imprisonment with a non-parole period of 2 years and 3 months commencing on 1 September 2015. The non-parole period expires on 30 November 2017. The applicant received a 25 percent discount for the utilitarian value of his guilty plea.
The applicant appeals against the severity of the sentence imposed upon him. He originally relied upon three grounds of appeal as follows:
1. Refusal of adjournment at hearing for the purpose of adducing psychological evidence.
2. The sentencing judge held that there was no evidence of remorse.
3. That there was an error in declining to find special circumstances in the case of the offender.
The applicant's written submissions in support of the appeal also foreshadowed an application for leave to adduce evidence of assistance to the police and to rely on such evidence in this appeal. Counsel for the applicant additionally contended that this evidence was also relevant or referable to the question of remorse that is raised by ground 2.
Following discussion during the course of the appeal in this Court, the appellant indicated that he wished to reformulate his grounds of appeal. Accordingly, a document entitled Amended Grounds of Appeal was provided by his counsel in these terms:
1. That the appellant [sic] was by reason of the refusal of adjournment of the sentencing hearing for that purpose unable to adduce evidence for consideration by the Court in determining sentence to be imposed upon the appellant.
2. (In the event that this Court does uphold this ground the appellant seeks leave to rely upon a report prepared by David Diment psychologist).
3. That the sentence imposed was manifestly excessive by reason of the finding by the Court that there was no evidence in the sentencing proceedings of remorse and contrition on the part of the appellant.
4. That the sentencing court erred in finding that there were not, in the circumstances of the appellant, special circumstances.
5. That a miscarriage of justice was occasioned by reason of the refusal of the learned sentencing judge to grant an adjournment for the purposes of obtaining a psychological report.
Regrettably, ground 4, in those terms, entirely misstates the additional ground of appeal foreshadowed during argument in this Court, which was directed to a perceived miscarriage of justice that resulted from a failure on the applicant's behalf to tender evidence of assistance to the police. So much is clear from the transcript of the proceedings in this Court on 5 October 2016 at pages 4 and 5 as follows:
"HULME J: Normally in a situation like this, there would be a ground of appeal, such as, there is a miscarriage of justice because of the absence of evidence of assistance, or something like that but here, you're confining it to ground 2.
BREZNIAK: Well if the Court pleases, I would seek to add an additional ground in precisely the terms that your Honour indicates because it is a miscarriage of justice, we say, for there to have been an omission of - entirely of evidence of this client in the sentencing hearing, and I thank your Honour for pointing that out because
HULME J: It's not for me to formulate a ground of appeal. It's for you, Mr Brezniak.
BREZNIAK: No. I understand that your Honour, and so in default of my formulating that ground, it is proper that I seek now to add an additional ground of appeal which would be ground 4 that by reason of the omission, on behalf of [OGC], to tender evidence of assistance to police as being a miscarriage of justice. That's how I would formulate the ground, your Honour. Now I readily accept that it should have been so formulated.
WARD JA: Ms Crown, what's the Crown's position in relation to the very belated application further to amend the amended grounds of appeal?
WILLIAMS: It's very late, your Honour and I don't want to hold the wheels of justice up any longer. It's not easy having to deal with something as it were, on the run, but on balance, the Crown would submit that the principles we have addressed in our written submissions and I'll be happy to meet that additional ground of appeal by making some oral submissions if your Honours please.
WARD JA: Yes, thank you, Ms Crown. The Court will give leave for the amendment of the amended grounds of appeal. Mr Brezniak, please file a further amended grounds of appeal in the terms that you have articulated by close of business tomorrow."
For reasons to which it is presently unnecessary to refer, the applicant ultimately abandoned grounds 1 and 3 of his amended grounds of appeal. In other words, he indicated that his principal complaints were that the sentence was manifestly excessive, by reason of the way in which the sentencing judge dealt with the issues of remorse and contrition, particularly in the light of his assistance to authorities, which was also fundamental to new ground 4. In that last respect the applicant indicated that he wished to rely upon particular evidence of this assistance, in the form of a series of recent affidavits. That course was opposed by the Crown. This is referred to below. The applicant was otherwise content for this Court to accommodate his former complaints about the sentencing judge's alleged failure to find special circumstances and his original attempt to rely upon the psychologist's report by this Court taking each of them into account upon resentencing him if it formed the view that some other sentence was warranted.
[2]
Background
The applicant was sentenced upon the basis of agreed facts as follows.
Between December 2014 and February 2015, police attached to the Gosford Drug Unit were conducting investigations into the supply of prohibited drugs, namely crystalline methylamphetamine, by the applicant in the Gosford area. On the following occasions, police seized the prohibited drugs immediately after he was observed and recorded supplying the drugs to a purchaser.
[3]
Supplying drugs on an ongoing basis
At about 12pm on 23 December 2014, in the car park of the Gosford waterfront boat ramp, the applicant was monitored as he supplied 8.1 grams of packaged crystal methylamphetamine for $2,300. The substance was seized by police and analysis confirmed it to be crystalline methylamphetamine with a weight of 6.8 grams and a purity of 77.5 percent.
At about 11.30am on 30 December 2014, in the car park of the Gosford waterfront boat ramp, the applicant was monitored as he supplied 8.7 grams of packaged crystal substance to an undercover police officer for $2,300. The substance was seized by police and analysis confirmed it to be crystalline methylamphetamine with an official weight of 7.05 grams and a purity of 79.5 percent and 78 percent.
At about 11am on 6 January 2015, in the car park of Adcock Park Sports Ovals, West Gosford, the applicant was monitored as he supplied 7.8 grams of packaged crystal substance to an undercover police officer for $2,300. The substance was seized by the police and analysis confirmed it to be crystalline methylamphetamine with an official weight of 7.05 grams and a purity of 79 percent.
Accordingly, between 23 December 2014 and 6 January 2015, the applicant was monitored as he conducted three supplies of crystal methylamphetamine for financial and/or material reward, the total amount supplied being 20.9 grams and the total amount received by him being $6,900.
[4]
Supply prohibited drug
At about 10.20am on 18 February 2015, the applicant was stopped while driving a motor vehicle south along Masons Parade, Point Frederick. He was immediately arrested and a subsequent search of the vehicle located a clear plastic resealable bag containing a crystal substance believed to be crystal methylamphetamine, which was located in the centre console. The item was seized and weighed in front of him. It returned a weight of 11.02 grams. It was later analysed and confirmed to be crystal methylamphetamine, with an official weight of 10.6 grams and a purity of 79.5 percent.
During the course of the search of the car, police located a number of items of interest which were sent for forensic analysis. The applicant was conveyed to Gosford Police Station where he was informed of his rights.
At about 11.15am, police served an occupier's notice on the applicant and informed him that a search warrant would be executed at his residential premises. He declined to be present during the search of his property.
[5]
Possess prohibited drug and possess unregistered firearm (2)
At about 11.45am, the search warrant was executed at the applicant's premises. During their search of the garage, police located a total of 20.8 grams of cannabis, as well as locating and seizing two unregistered air rifles. Only one of the rifles contained a serial number.
[6]
Ground 2
The applicant relied upon a series of testimonials at the sentencing hearing to support his contention that he was remorseful. The sentencing judge referred to these in some detail. Barbara Mann, who had known the applicant for 45 years, spoke highly of him, saying that he was "utterly remorseful for putting his family through this heartache". Peter Strain, a barrister who had known the applicant since they attended St Edward's College at East Gosford in the early 1970s, said that "there is no question that he is remorseful and contrite". His Honour observed, however, that Mr Strain's letter contained no material or information indicating how this remorse and contrition is said to have been expressed. The balance of written references tendered on the applicant's behalf speak of his dedication to the care of his disabled mother but do not otherwise appear to address matters of remorse or contrition at all.
His Honour dealt with these issues in specific terms, having regard to the evidence given by the applicant at the sentencing hearing. His Honour's remarks on sentence were relevantly in the following terms:
"While I accept that those to whom he is said to have expressed remorse and contrition genuinely believe that he is remorseful and contrite, I rely on the evidence that was given in Court by the offender. In that regard, and in [the] absence of a precise transcript, I quote the following.
When asked a question by Mr Woodley of counsel, who appeared for him, as to how he felt about the crimes he had committed [he said]:
'devastated … turned my world upside down … caused all sort of problems … disgrace on family name … had to tell all dad's mates … dad's brother and apologise … ramifications far reaching … my son will have a father with a criminal record … if gaoled I'll possibly have to sell the house … unable to make payments.'
In cross-examination, Mr Page, solicitor for the DPP, asked a question to the effect that he only felt devastated because he had been caught. His response was to accept that that was one of the reasons, and also 'the ramifications to me, my family, friends'.
When given the opportunity to express some remorse or contrition for his conduct, in my view, the offender completely failed to do so. He only expressed concern for his family and himself and the embarrassment and potential economic difficulties, rather than acknowledging the seriousness of an offence concerning the supply of a prohibited drug, which has become notorious for its adverse effects on those that consume it. In that regard, it is also of serious concern to the Court that the offender, while having no criminal record, has worked in Juvenile Justice for some 23 years and acknowledged in cross-examination the adverse effects of the prohibited drug.
He was asked a question to the effect that while working with Juvenile Justice, had he seen what the supply of drugs did to the community and young children, particularly those that had been in his care? His answer was, 'I seen, yeah.' He was asked a question to the effect as to whether he cared about that when he was supplying drugs. His response was, 'It wasn't something I wanted to do…I did, yeah…that's why I stopped.' I have some difficulty understanding that, as it appears that the only time he stopped was when he was finally arrested, and has perhaps stopped since that time.
Revealingly, he also stated that he had seen the effects of the drug and that it was 'insidious…and can destroy lives'. He also said that for many years, he had been concerned in alcohol and drug courses while with Juvenile Justice so that he had a good understanding of the adverse effects.
In cross-examination, after that evidence, it was put to him that he had nonetheless supplied the drugs for money. His response was:
'Yes, I was asked to. I didn't go looking for it…the person that had me do this owed me money…woman owed me money and couldn't get it back…she is a real addict…worst I've seen…she ripped me off all over the place'.
Those answers of course raised a number of questions. It is not for the presiding judge to explore the material that is placed before the Court, and in re-examination no questions were asked of the offender to further elucidate any of the claims made by him. There is no evidence before the Court that the offender is a drug user: that is, there is no evidence that he committed the offence as a matter of need rather than greed. Indeed, the evidence last quoted seems to suggest that he was doing it to obtain funds, even if it be payment of monies otherwise owing.
The offender, full well knowing the seriousness of his conduct and the significant adverse effects that prohibited drugs and in particular crystal methylamphetamine can have on others, was prepared to significantly involve himself in the illicit drug trade, to the general harm of the community."
It was submitted on the applicant's behalf that his plea of guilty was some evidence of remorse. He referred to what was said by Basten JA in R v Thomas [2007] NSWCCA 269 at [19]:
"[19] The failure of Mr Thomas to give evidence to that effect himself in the witness box; his continued adherence, through many days of hearing, to an implausible story which was disbelieved, but constituted a significant attempt to diminish his responsibility for the offence, and the fact that he committed a further serious offence less than a month later, all require consideration in assessing the genuineness of remorse and the extent to which his expression of remorse can mitigate an otherwise appropriate sentence. A finding of genuine remorse should not be made lightly, especially in circumstances where there are contra-indications. A sentencing judge should indicate the manner in which he or she has taken into account the possibility that expressions of regret may be triggered by the threat of incarceration. On the other hand, it is fair to say in the present case that his Honour accepted the genuineness of his attempts to overcome abuse of alcohol which would provide a basis for the conclusion that there was a genuine attempt to address an underlying cause of the violent behaviour."
I have reviewed the transcript of the applicant's evidence at the sentencing hearing. I have some considerable difficulty detecting any error or misapplication of principle in the way in which his Honour dealt with the questions of the applicant's contrition and remorse. In particular, my distinct impression, consistently with the view formed by his Honour, is that the applicant's significant focus was self-interest and regret for the position in which he found himself, rather than shame for the external consequences of his actions or anything similar.
His Honour was entitled to come to the view that he took. He was reliant upon the evidence before him. An assessment of the applicant's evidence was a critical aspect of that equation. In that regard it is apparent that the applicant was not alive to the harm that his actions were capable of causing or, more particularly, was unable or unwilling to give expression to his attitude to these matters if he was. I have on previous occasions expressed caution about proceeding too readily to a conclusion that an offender has not demonstrated remorse when that failure is arguably or obviously the result of unfamiliarity with formal or public expressions of emotion or because of subjective disadvantages that interfere with that process. No such impediments exist in the present case. It is also apparent that his Honour was at least not satisfied that the applicant had established by evidence that he accepted responsibility for his actions. The material quoted above tends to suggest that he was instead inclined to blame others for his predicament. It is moreover apparent that the applicant's acceptance of the damage caused by methylamphetamine ("insidious … and can destroy lives") was a reference to the general effects of that drug rather than a specific acceptance or acknowledgment that the precise drugs he distributed actually had that effect.
It is clear that his Honour carefully evaluated the evidence touching the question of the applicant's remorse. That included the special advantage of observing the applicant give his evidence. I am unable to detect error in the exercise of the sentencing discretion. His Honour was perfectly entitled to conclude as he did.
[7]
Ground 4
This ground raises potentially two areas of inquiry. The first is to consider whether the applicant should be permitted at this stage in this Court to adduce evidence of assistance to the authorities that was not led below. This question is informed by an understanding of why the evidence of assistance was not led at the sentencing hearing in the first place as well as the content of the evidence concerned. The second is to assess whether or not it would have made any difference to the sentencing outcome if the evidence had been received below.
[8]
The evidence in question
The applicant sought to rely upon three affidavits. The first was sworn by David Griffiths on 10 August 2016. Mr Griffiths arranged to take screen shots of a series of text messages found in the applicant's mobile phone that had passed between the applicant and Detective Adam Noy in the period from 24 February 2015 to 14 August 2015. These screen shots were printed and annexed to Mr Griffiths' affidavit. There is no controversy attending the fact that these messages were sent or received by the applicant and Detective Noy or that the screen shots accurately and completely reveal what they said.
Two affidavits were sworn by the applicant on 27 June 2016 and 1 July 2016 respectively. Only the first affidavit is presently relevant. It included the following paragraphs:
"3. After I was arrested I was taken to Gosford police station and interviewed by Detective Noy. I was allowed to make a telephone call to a lawyer, which I did and the advice I received from the lawyer was not to make any admissions to the police. Notwithstanding that, I made some admissions but did not participate in a full record of interview. I was subsequently charged and given police bail.
4. At that time at Gosford police station Detective Noy said to me words to the effect: 'You would do yourself a favour by giving us assistance and telling us about other drug dealers.'
5. At the time I did not know much about giving assistance to the police. I said to the detective words to the effect: 'I will be in touch with you and work something out.' Detective Noy gave me his mobile phone number for me to contact him on.
6. A few days after being arrested I saw a barrister in Sydney and told him about the suggestion from Detective Noy to offer assistance.
7. I thereafter sent to Detective Noy text messages and received from Detective Noy text messages using my own mobile telephone … I did retain control of my mobile telephone containing a record of the sent and received text messages and the text messages have remained on that telephone. I say that I have had the opportunity to reread all of the text messages on my telephone that I sent to Detective Noy and all of those messages which I did receive from Detective Noy during the period to which I refer in this my affidavit, below.
8. On or about the 24 February 2015 I sent and did receive a text message with Det. Noy and we agreed to meet later that day at 33 Paringa Ave, Davistown on the Central Coast. When we met Detective Noy said to me words to the effect:
'If you were to offer assistance to the police, that would work well for you on sentence. What happens is that after you give us assistance we write a letter of comfort for you which would ultimately be handed to the judicial officer and opened privately by the court. If you wish to give us assistance you will need to sign some forms and then you can work exclusively with me in relation to any further investigations. By the way, don't tell your solicitor or barrister that you are rendering assistance to us.'
9. Detective Noy explained to me 'there is a form you must sign before you can become an informant'. I asked him whether he had the assistance forms for me to sign and he said he didn't and would have to bring them on another day. I said to him words to the effect: 'I will be happy to give you assistance.'
10. On the 2 March 2015 I sent Detective Noy a text message asking him when we could meet so I could sign the forms. There was no reply. I sent him another text on 5 March 2015 again asking him when I could sign the forms. Again I received no reply from Detective Noy.
Detective Noy did reply to my text messages on the 6 March 2016 stating that he had been 'tied up with something else, I will contact you next week.'
…
13. On the 27 March 2015 I met Detective Noy behind the scout hall at East Gosford. The purpose of the meeting was to discuss assistance I was going to give to the police. At that meeting Detective Noy gave me an 'assistance' form to sign.
It is my recollection that the form which I did sign stated words to the effect that I was to become a 'police informant' and Detective Noy was to become my 'handler'. As I recall, I was only to deal with Detective Noy or any other Detective with him or his superior. As I understood it, no other police officer was to or would know that I was acting assisting police. I signed the form and gave it back to Detective Noy.
14. Following the meeting I continued to work on and try to work out how I could and would be able to assist the police. At that time I felt very vulnerable and fearful of my safety but I did convince myself that my assisting Detective Noy was the right thing to do."
The applicant thereafter proceeded in general terms to refer to the text messages between him and Detective Noy. His affidavit does not contain details of any particular additional information that the applicant was able to provide to the police that was of assistance to them in their investigation of other crimes. The applicant refers to some names that were passed on to Detective Noy but it is fair to say that the references to these people and the details of their activities are sketchy and inconclusive.
[9]
Principles governing additional evidence
The principles governing the reception of additional evidence on an application for leave to appeal against sentence are well settled: see Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [104]-[121]. The following relevant principles should be noted:
1. A distinction has been drawn between "fresh" evidence and "new" evidence. Evidence will be considered fresh if the applicant was not aware of the evidence and the evidence was not discoverable with reasonable diligence at the time: R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 at [63]. New evidence is evidence which was available to the applicant but not relied upon at first instance, or evidence which was discoverable with reasonable diligence: Khoury at [107].
2. As a general rule, the principle of finality does not allow parties to produce fresh or new evidence on appeal: Cornwell v R [2015] NSWCCA 269 at [39]. The exceptions to this general rule are where there has been a miscarriage of justice (see R v Fordham (1997) 98 A Crim R 359 at 378) or where it is in the interests of justice for the Court to receive the evidence (see Cornwell at [59]).
3. The Court must use caution when exercising the discretion to receive fresh or new evidence and there must be proper grounds for it to do so: Khoury at [107].
4. The Court should have regard to the circumstances of, and any explanation offered for, the non-production of evidence and whether the evidence had the potential to affect the sentencing outcome at first instance: Khoury at [121].
5. In relation to new evidence, the mere fact that evidence available to the applicant at the time of sentencing was not put before the sentencing judge will not ordinarily be sufficient to establish a miscarriage of justice, even if the evidence could potentially have affected or influenced the sentence imposed on the applicant: Fordham at 377.
[10]
Crown submissions
As properly conceded by the applicant, the evidence contained in the affidavits upon which he proposes to rely cannot be considered "fresh" evidence. The application is premised upon the contention that the applicant was "unable" to adduce any evidence of assistance during the proceedings on sentence. Such a contention cannot be sustained.
It was always known to the applicant and to his legal representatives at first instance that he had provided information to police about alleged criminal activities. So much is apparent from the affidavit of Peter James Kernan, sworn 5 August 2016, filed by the applicant, which contains the following paragraphs:
"1. I acted for the appellant [sic] in the original sentence proceedings before his Honour Judge King SC on 31 August 2015 at Gosford.
2. I have been asked by solicitors acting for the appellant in his appeal…to review my file and comment upon efforts made to obtain a 'letter of comfort' for [OGC] from Detective Noy, the police officer in charge of the arrest and investigation…
3. On or about 29 April 2015 I recall having a conversation with the appellant where he said to me words to the effect 'I have provided Detective Noy information about a manufacturer of 'ice' by the name of 'Mo'.
4. On or about 12 August 2015 I recall telephoning Detective Noy and saying to him words to the effect of 'I act for [OGC]. I am instructed by him that he gave you information about criminal activities. I am trying to ascertain whether [OGC] can be assisted in court at his sentence proceedings with a letter of comfort from you.' Noy said to me words to the effect of 'No, I won't be giving him any letter of comfort'.
5. I did not speak to Noy or any other police officer about this matter again."
The applicant's contention that he was "unable" to adduce evidence of assistance to police is premised on the fact that Detective Noy did not provide a "letter of comfort". This was not the only means available to the applicant for adducing such evidence. He chose to give evidence on sentence in relation to other matters in mitigation, but did not give evidence about any assistance he allegedly provided. It is otherwise clear that the applicant was still in possession of the mobile telephone he used to communicate with Detective Noy at the time of the sentencing proceedings and that he was in a position to lead the same evidence before the sentencing court as he now seeks to have admitted in this Court. The applicant has not alleged that he held fears for his safety, nor has he offered any other compelling explanation for the failure of his legal representatives at first instance to put the information before the sentencing court.
[11]
Should leave be granted?
Section 23(2) of the Crimes (Sentencing Procedure) Act 1999 sets out the factors relevant to the assessment of whether a lesser sentence is warranted as a result of assistance provided to authorities in the prevention, detection or investigation of an offence:
"(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:
(b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,
(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,
(d) the nature and extent of the offender's assistance or promised assistance,
(e) the timeliness of the assistance or undertaking to assist,
(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,
(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,
(h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist,
(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence."
Detective Noy affirmed an affidavit on 17 September 2016 dealing with the nature and extent of the assistance provided by the applicant. In summary, Detective Noy indicated that the information only resulted in the generation of one intelligence report that contained information that was largely already known to the police. It did not lead to an ongoing investigation or any arrests. The applicant has since been de-registered as a source. The police were unable to verify the majority of the information supplied. The "assistance" was in any event limited to the applicant offering rudimentary information concerning individuals who the applicant believed may have been involved in the supply of illegal drugs. The applicant did not provide statements and did not give evidence in court.
There is no evidence in this Court to suggest that the applicant has suffered or will suffer any harsher conditions of incarceration as a result of the provision of information to the police or that his family has been affected in any way.
The applicant has offered no reasonable explanation as to why his dealings with Detective Noy or evidence of any assistance that he contends he had provided were not raised before the sentencing judge. The applicant makes no complaint about his former legal advisers and in fact somewhat curiously relies upon the evidence of Mr Kernan, which appears clearly inimical to his present application. An obvious forensic decision not to lead this evidence was made in the court below. The applicant seeks to do now what he could have done in the sentencing proceedings but for unexplained reasons chose not to do. I am unable to conclude that the applicant's considered decision not to call the evidence of his assistance has occasioned any miscarriage of justice. I would refuse leave to rely upon that evidence now.
[12]
Would it have made any difference?
It also seems clear that the so-called assistance offered by the applicant was of such little value, and fell so far short of satisfying any relevant considerations, that it would not have made any difference to the sentencing outcome. The assistance provided could neither be described as significant or useful. It is in such circumstances difficult to conclude that the reception of the details of the applicant's dealings with Detective Noy, and the ultimately inconsequential nature of the information supplied, would have led to the imposition of any different sentence.
[13]
Conclusion
In my opinion the following orders should be made:
1. Grant leave to appeal against sentence.
2. Refuse leave to adduce evidence in the appeal.
3. Dismiss the appeal.
RA HULME J: I agree with Harrison J.
[14]
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Decision last updated: 28 November 2016