R v Hookey; Cooper and Dates

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Arnaout v R [2008] NSWCCA 278 Clare v R (2008) 181 A Crim R 450 Johnson v the Queen (2004) 78 ALJR 616 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1988) 194 CLR 610 CASES CITED : R v Close (1992) 65 A Crim R 55 R v Horne [2004] NSWCCA 8 R v Pham [2005] NSWCCA 94 R v Robinson [2000] NSWCCA 182 R v Simpson (1992) 61 A Crim R 58 R v Simpson (2001) 53 NSWLR 704 R v Thomson NSWCCA unrep'd 21 May 1986

Regina PARTIES: Darren Hookey Leigh Cooper Stephen Dates

FILE NUMBER(S): CCA 2009/3670; 2009/3680; 2009/3671

M Grogan (Crown) (Appellant) COUNSEL: J Stratton SC (Respondent Hookey) R Burgess (Respondent Cooper) J Watts (Respondent Dates)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) S O'Connor (Solicitor Legal Aid Commission) (Respondents)

IN THE COURT OF CRIMINAL APPEAL 2009/3670 2009/3680 2009/3671

McCLELLAN CJ at CL BUDDIN J HALL J

R v DARREN HOOKEY; R v LEIGH COOPER; R v STEPHEN DATES 1 McCLELLAN CJ at CL: I agree with Buddin J 2 BUDDIN J: Introduction

These are Crown appeals against sentences imposed upon the three respondents in the District Court which, for reasons of convenience, were heard together. Without intending any disrespect to them, I shall refer to each of the respondents by their surnames. Although each of these respondents was sentenced in respect of other offences as well, which appeared on a s 166 certificate, the appeal is confined to the sentences imposed upon each of them for the offence of escaping from lawful custody That offence, when dealt with on indictment, attracts a maximum penalty of 10 years imprisonment. 3 The factual background to the matter, being uncontroversial, can be briefly stated. The three respondents were inmates at the Yetta Dhinnakkal Correctional Facility, which is located about 65 kilometres from Brewarrina. According to the sentencing judge it is set on about 10,000 hectares and has no security fence. Most of the inmates, like the respondents, are young Aboriginal men. His Honour observed, of the facility, that "[p]rison discipline is generally abandoned for a more therapeutic type of custody geared towards learning skills ranging from literacy, driving knowledge tests to driving farm equipment, fencing and the like". 4 Shortly after 10pm on 2 November 2008 the three respondents left the facility in a utility which was owned by the Department of Corrective Services. They had obtained the key to the vehicle by breaking into a secured office and removing it from a locked cabinet. Police were notified when it was realised that the three respondents were missing. Police saw the stolen vehicle at about 10.45 pm but soon lost sight of it because of the prevailing weather conditions and the speed at which the vehicle was travelling. The vehicle was next seen about an hour later at Walgett where it was pursued and eventually stopped. The respondent Hookey was apprehended and returned to custody but the other two respondents managed to elude police. 5 At about 7 am on 4 November the respondents Cooper and Dates stole another vehicle from a property at Walgett. When it was seen by police about 45 minutes later it was pursued. During the pursuit, the vehicle in which the respondents were travelling reached excessive speeds even when it was passing through two small townships. On occasions it was observed to be travelling on the wrong side of the road. In due course the vehicle run out of fuel and the respondents were apprehended. The respondent Dates was in the driver's seat whilst the respondent Cooper was occupying the passenger's seat. The respondent Hookey had been at large for about 2 hours whilst the other two respondents had been at large for about 36 hours.

The respondent Cooper 6 At the time that he escaped from custody, this respondent was serving sentences for offences of assault and assault occasioning actual bodily harm for which he had received an effective head sentence of 16 months. It consisted of a non-parole period of 12 months which commenced on 12 July 2008 and expired on 11 July 2009 with the balance of the term being 4 months which is due to expire on 11 November 2009. 7 In respect of the current matters, the respondent was sentenced to a fixed term of 6 months imprisonment for each of the two offences of being carried in a conveyance without consent (these offences related to the two stolen vehicles). Those sentences were ordered to be served concurrently and each was ordered to commence on 14 April 2009 and are thus due to expire on 13 October 2009. The maximum penalty for each of those offences is imprisonment for 2 years. It seems that the commencement date took into account the two days that the respondent had been at liberty. An offence of entering enclosed lands, for which the maximum penalty was a fine of $550, was dealt with under the provisions of s 10A(1) of the Crimes (Sentencing Procedure) Act 1999. In respect of the offence of escaping from lawful custody, the respondent was sentenced to 12 months imprisonment, consisting of a non-parole period of 3 months which is due to commence on 14 October 2009 and which is due to expire on 13 January 2010, with the balance of the term being 9 months which is due to expire on 13 October 2010.

The respondent Dates 8 At the time that he escaped from custody, this respondent was serving sentences for driving offences, including two offences of driving whilst disqualified and two of driving recklessly. The effect of those sentences is that he was serving a total sentence of 18 months which commenced on 23 August 2008 and which is due to expire on 22 February 2010. 9 In respect of the offence of being carried in a conveyance without consent, (which was the first offence in time), he received a fixed term of 6 months imprisonment. That sentence is due to commence on 24 November 2009 and is due to expire on 23 May 2010. In respect of the offence of take and drive a conveyance, (which was the second offence in time), the respondent was sentenced to a non-parole period of 6 months which is due to commence on 24 November 2009 and which is due to expire on 23 May 2010. The balance of the term, being 1 month, is due to expire on 23 June 2010. A concurrent fixed term of 1 month for possessing a small amount of cannabis was imposed and the offence of entering enclosed lands was dealt with under the provisions of s 10A(1) of the Crimes (Sentencing Procedure) Act 1999. In respect of offences of driving whilst disqualified and driving in a dangerous manner (which arose from his driving of the vehicle that was pursued by the police), the respondent was sentenced to a non-parole period of 6 months which is due to commence on 24 November 2009 and which is due to expire on 23 May 2010, with the balance of term being 3 months which is due to expire on 23 August 2010. Those sentences were ordered to be served concurrently with each other and with the sentences to which I have just referred. In respect of the offence of escaping from lawful custody, this respondent was sentenced to 12 months imprisonment, consisting of a non-parole period of 3 months which is due to commence on 24 May 2010 and which is due to expire on 23 August 2010, with the balance of term being 9 months which is due to expire on 23 May 2011.

The respondent Hookey 10 At the time that he escaped from custody, this respondent was serving an effective head sentence of 3 years imprisonment for offences of aggravated break and enter with intent in company and steal from the person. It consisted of an effective non-parole period of 22 months, which was ordered to commence on 11 December 2007 and which is due to expire on 10 October 2009, with the balance of the term being 14 months which is due to expire on 10 December 2010. 11 In respect of the offence of being carried in a conveyance, this respondent received a fixed term of imprisonment of 6 months which commenced on 11 June 2009 and which is due to expire on 10 December 2009. In respect of the offence of escaping from lawful custody, he was sentenced to 12 months imprisonment, consisting of a non-parole period of 3 months which is due to commence on 11 December 2009 and which is due to expire on 10 March 2010, with the balance of the term being a period of 8 months and 1 week which is due to expire on 17 November 2010.

The respondent Cooper 12 This respondent was 22 when he committed the offences in question. He was born in Shepparton, Victoria and is one of five children. His father left the family home when the respondent was 7 years old, as a result of which he and his mother and siblings moved to Redfern. He still enjoys their strong support. At the age of 13 he was introduced to alcohol and heroin. He continued to use heroin on a daily basis until he was 21. He has also regularly experienced alcohol induced blackouts after bouts of binge drinking. Since leaving school at 14 he has not acquired any apparent vocational or work skills. He has a significant criminal history dating back to 2000 when he was dealt with in the Children's Court for stealing from a person and other offences. He has since acquired convictions for offences of armed robbery, break, enter and steal and other offences of dishonesty, as well as for driving offences. He has also on several occasions breached parole. The sentencing judge estimated that he had spent nearly 60% of his 5 years as an adult in gaol. The sentencing judge could find little to suggest that the respondent was motivated to change his ways or that he had any insight into his offences. His Honour described his rehabilitation prospects as appearing to be "bleak".

The respondent Dates 13 He is the youngest of the respondents, being 18 at the time of the offences. He was raised in Raymond Terrace. His parents separated when he was four and his mother then remarried. His step-father allegedly abused the respondent as well as his mother and one of his brothers. The respondent left home when he was 16 having completed Year 10 and having obtained certificates in bricklaying, hospitality and land management. However he has acquired no other vocational skills and nor does he have a history of employment. The respondent began drinking alcohol at the age of 15. He reported that he resorted to binge drinking several times a month as well as consuming cannabis on a daily basis. This respondent also has an extensive criminal history which includes convictions for aggravated break and enter with intent, robbery in company, and numerous offences of break and enter. Although he has never held a licence, he also has a number of convictions for driving offences. He has a prior conviction for escaping from a juvenile detention centre and on one occasion he breached parole. Although he was found to lack insight into his offending behaviour, the sentencing judge appeared to accept that he was still affected by the authorities' decision not to allow him to attend his father's funeral which had taken place only shortly before he escaped from custody. His Honour acknowledged that he had strong family ties but described his rehabilitation prospects as "clouded".

The respondent Hookey 14 This respondent was aged 21 at the time that he escaped from custody. He was raised in Parramatta. His parents separated when he was 8, primarily as a result of his father's drug dependence and violence towards his mother. Nevertheless he continues to have a close and supportive relationship with her and his four siblings. This respondent was expelled from school when he was 14 and has no employment history. It was at that stage that he began using illicit drugs and he has continued to use heroin since then on a daily basis. His attendances at residential drug rehabilitation facilities have not proved to be successful. This respondent also has a lengthy criminal record. He has twice been sentenced to terms of imprisonment for offences of armed robbery. He also has several convictions for stealing from the person and other offences of dishonesty, as well for numerous offences of common assault. He also has a prior offence of escaping from lawful custody and has breached parole on two occasions. The sentencing judge found that the respondent had expressed remorse but described his prospects for rehabilitation as "clouded". 15 Each of the respondents received a discount of 25% from the otherwise appropriate sentence to reflect the fact that he had pleaded guilty to the offences in the Local Court. The sentencing judge gave consideration to the question of parity. The slightly shorter overall sentence which was imposed upon the respondent Hookey was attributable to the fact that he was at large for a shorter period than the other two respondents. As best I can understand it, in respect of the offence of escaping from lawful custody, the sentencing judge determined on an overall starting point for his sentence of 15 months, as opposed to 16 months for the other two respondents, before in each case applying the 25% discount for the plea of guilty.

The sentencing remarks 16 In assessing the objective gravity of the offences, his Honour observed: Escaping from Correctional Services custody is in essence an offence against the proper administration of criminal justice. To effect this escape damage, albeit minor damage, was done to government property. The mechanism used to achieve the escape namely, driving off in a motor vehicle, involved the commission of a further offence namely, riding in a stolen conveyance. None of the prisoners was at large for any length of time, although both [Cooper] and Dates committed further offences whilst at liberty, including driving riding in a stolen conveyance, a theft of another motor vehicle and entering inclosed lands. Escaping from minimum security is a selfish self-centred offence. It puts pressure on prison authorities to toughen up the admission criteria to minimum security centres and rehabilitation programs available to those minimum security centres. Escapes have created a new classification, E, for prisoners who have escaped which denies them access to therapeutic rehabilitation programs. Each of these offenders will now have his classification marked accordingly. … No prison officer was personally confronted by any of the offenders to effect the escapes, nor was any other prisoner recruited for any purpose associated with the escape. The offence was committed whilst in company, that adds to the criminality in that potentially more resources would have been needed to find and capture the offenders, and police may well have regarded themselves as being at greater risk from three escapees than from one. These escapes fall though towards the lower end of the range. Some upper adjustment of criminality will need to be made to the sentences of [Cooper] and Hookey for the extra time they were out of custody. There was further offending whilst they were out, but that has been separately charged. While there are s 166 certificates the sentence imposed in respect of the further offending will be concurrent, but the sentence for the escape must be cumulative to them. … These are offences calling for deterrence. The incarcerated community takes a keen interest in sentences given for escape. It is important prisoners clearly understand any sentence given will be cumulative, not only upon existing non parole periods, but also upon any sentence given for offences committed whilst at large in the community. Parliament has prescribed this as a strong deterrent to would be escapees 17 His Honour also referred to the requirement that the focus in sentencing should be upon the protection of the community. He also concluded that the offence was not planned. His Honour also observed that none of the respondents had applied to go to the particular facility in question and that each found it very remote given that his family was in Sydney.

The appellant's submissions 18 The submissions advanced on behalf of the Crown were said to be equally applicable to each of the respondents. Nor was it suggested that there was any basis for differentiating between them. The Crown conceded that his Honour had not committed any specific error of fact or law. Moreover, it was also expressly acknowledged that "it was open to his Honour to characterise the offence as at the lower end of the scale of seriousness". 19 The Crown in advancing the submission that the sentences were manifestly inadequate relied in particular upon two decisions of this court. In R v Thomson NSWCCA unrep'd 21 May 1986, Street CJ, with whom the other members of the court agreed, observed: It is desirable in the view I take for this Court to make a general pronouncement upon the approach to be taken by criminal courts when sentencing for this offence and to provide some indication of the length of sentence that should be considered by sentencing judges. As has been stated the statutory maximum is seven years' penal servitude. This places the offence within the moderately serious nature of crimes. Plainly enough this legislative policy is justified by the necessity of a strong general deterrent to escaping. The condition of prisoners held in custodial institutions must inevitably be harsher if rigorous methods are necessary to preclude escapes. This Court many times has said that those who go to low security institutions and avail themselves of that low security in order to escape are placing in jeopardy such reforms in our penal system as can be implemented in low security institutions. The element of significant general deterrence plays an important part in the capacity of the State to continue with reforms in the physical circumstances under which prisoners are held in gaols. That consideration is to be kept very much to the forefront by sentencing judges. Sentences in the order of six to nine months whilst not necessarily erroneous are below the pattern ordinarily to be expected. Judges are not free to disregard the import of the legislature's prescription of seven years at the maximum The ordinarily level of sentence for what might be called an unremarkable escape could be expected to approximate two years. This ordinary expectation is to be recognised and observed by sentencing judges in order both to bring regularity into the treating by criminal courts of this offence and also in order to mark the importance of general deterrence. I take the view that the sentence of two years in the present case was entirely appropriate. It represents the proper measure of sentence. In so saying I do not inhibit the ordinary range of discretion open to trial judges who either pass longer or shorter sentences should particular circumstances so require but the norm should be regarded as being in the order of two years. 20 In R v Pham [2005] NSWCCA 94, Wood CJ at CL, with whom the other members of the court agreed, said: The offence of escape has been regarded by the courts as a serious offence, which potentially jeopardises the future of minimum security facilities and threatens the continued provision to prisoners of beneficial and humanitarian custodial arrangements and opportunities. It may lead to additional restrictions being placed upon their access to external medical treatment, and it may also impede the progress of rehabilitation for offenders with favourable prospects, if conditions of detention are strengthened, in order to prevent escapes. These considerations were noted, for example, in R v Thomson NSWCCA 21 May 1986 where, in a case decided before enactment of the Sentencing Act 1989, Street CJ observed that the ordinary sentence for an unremarkable escape "could be expected to approximate two years" (at a time when the maximum penalty for the offence was imprisonment for 7 years); and also in R v Mathieson [2002] NSWCCA 97 at [27]. Where the offender has remained at large for a very lengthy period or has used the opportunity of being at large to commit further offences, as was the case here, then the overall objective seriousness of his criminality is potentially increased: R v Plummer [2000] NSWCCA 363 at [34] and R v Josef Regina [2000] NSWCCA 100. The elements of both personal and general deterrence are also important, it being essential that prisoners understand that any offence of escape or attempted escape will result in a meaningful overall increase in their detention: R v Butler [2000] NSWCCA 525 at [18] and R v Smith [2004] NSWCCA 69. That this is so is also demonstrated by the fact that the maximum penalty prescribed for the offence has been increased from imprisonment for 7 years to imprisonment for 10 years. It is also for that reason that the legislature enacted, by way of s 57(2) of the Crimes (Sentencing Procedure) Act 1999, a requirement for sentences for escape to be served consecutively upon any existing sentence that has yet to expire, or upon any other sentence that is imposed in the same proceedings.(at paras 16-19) 21 The observations made in those decisions were referred to with approval in Arnaout v R [2008] NSWCCA 278. 22 As I understand the Crown's submission, it was to the effect that as the present offences should be characterised as being "unremarkable", the observations of Street CJ in Thomson (supra), that such an offence could ordinarily be expected to attract a sentence in the order of 2 years, had application. Accordingly, to impose head sentences of only half that length, particularly bearing in mind that the maximum penalty had increased in the interim, was said to be indicative of error. 23 The major focus of the complaint however concerned the length of the non-parole periods which had been imposed. It was submitted that no compelling reason had been advanced to justify why a period that represented only 25% of the head sentences had been fixed.

The respondents' submissions 24 It was submitted on behalf of the respondents that, notwithstanding the well-recognised limitations of such material, statistics maintained by the Judicial Commission did not bear out the Crown's contention that the sentences were manifestly inadequate. The statistics reveal 33 instances of the offence of escaping from lawful custody in the period from July 2001 to June 2008. 48% of those offenders received a head sentence of 12 months or less, whilst 47% of offenders received a non-parole period of 6 months (the statistics do not provide for periods of less than 6 months). Indeed, that material prompted the Crown, in written submissions, to candidly observe that "the statistics do not indicate that the principles identified in cases such as Thomson or Pham have been applied". 25 The respondents also placed considerable emphasis upon two particular cases in which the observations in Thomson (supra) had been discussed. Attention was drawn to this court's decision in R v Robinson [2000] NSWCCA 182, in which a Crown appeal against the asserted inadequacy of a fixed term of 6 months which had been imposed for escaping from lawful custody, was dismissed. Foster AJA, with whom Priestley JA and Smart AJ agreed, observed that: In Reg. v Thomson , (CCA, unreported 21 May 1986), Street CJ said: "The ordinary level of sentence for what might be called an unremarkable escape could be expected to approximate two years." His Honour had previously indicated that: "sentences in the order of six to nine months, whilst not necessarily erroneous, are below the pattern ordinarily to be expected. Judges are not free to disregard the impost of the legislature's prescription of seven years as the maximum. " It must be noted that, since this decision was given, the statutory maximum sentence has been increased to ten years. However, it should also be noted that in Thomson , a non-parole period of a little under fourteen months was imposed in relation to the head sentence of two years. I do not consider that Thomson can be regarded as laying down, as it were, a minimum tariff for sentences for escape. Later cases have taken this view. (See e.g. Reg. v Machinroth , CCA unreported 1998). Sentencing statistics placed before the Court indicate that, despite the statutory maximum, it is not unusual for sentences, as low as six months, to be imposed for this offence. There can be no doubt that a sentencing Court should not lose sight of the fact that a strong general deterrent is required to inhibit escape from Centres of Correction especially low security institutions, or from situations of low security (see Thomson and Reg. v Ertl , CCA unreported 7 May 1997). For my part, I consider that it would have been quite appropriate for a longer sentence to have been imposed in the present case. However, the question is whether her Honour's discretion miscarried in the relevant sense. … I have come to the conclusion that, her Honour's sentence, although demonstrably low, was not so low as to warrant the intervention of this Court. (paras 26-29, 31) 26 In R v Horne [2004] NSWCCA 8 this Court also dismissed a Crown appeal against the asserted inadequacy of a sentence imposed in respect of an offence of escaping from lawful custody. Bell J, with whom other members of the court agreed, observed: In R v Robinson [2000] NSWCCA 182 Foster AJA (with whom Priestley JA and Smart AJA agreed) observed that Thomson is not to be seen as providing a minimum tariff for the offence of escaping from lawful custody. A sentence of six months in that case was held not to be manifestly inadequate. The sentence of eight months' imprisonment imposed in this case was a lenient one. However, in light of the discussion in Robinson I am not persuaded that the Crown can succeed upon a challenge that it falls outside the range of sound discretion. (paras 37-38) 27 It was also submitted by the respondents that the criminality displayed in the present case being "at the lower end of the range" was, in any event, less serious than the circumstances which prevailed in Thomson where the offender had been at large for approximately 3 months. 28 As I said earlier, the Crown made particular complaint about the length of the non-parole period. In structuring the sentences as he did, his Honour said: In respect of Dates and Hookey the sentences they were serving appeared to be constructed so as to reflect a finding by the then sentencing judicial officer of special circumstances. That finding should be kept in place with subsequent cumulative sentences. In respect of all offenders the sentences are cumulative upon their existing sentences. To those existing sentences are added sentences for the 166 matters. It is important the overall sentences therefore be adjusted by use of special circumstances so at very least a "normal" ratio between the minimum term and the balance of term are preserved. Further, all offenders are young men who will have served extended periods in custody. Courts are required for young offenders to give weighting to rehabilitation where appropriate. Each of these is desperate for rehabilitation. Each of these offender's prospects at rehabilitation are at best clouded. … Since each offender is to be sentenced for offences committed whilst out that will be cumulative to the escape sentence, weighting of the sentence for escape on account of offences being committed will be more muted than it would be before such a requirement was imposed. 29 The Crown was critical of that passage insofar as it appeared to suggest that his Honour regarded the need for rehabilitation as the paramount consideration in determining the length of the non-parole period. It was submitted that in doing so his Honour had been distracted from the fundamental task of determining "the length of the minimum period of actual incarceration": R v Simpson (2001) 53 NSWLR 704 [at para 57]. 30 For the respondents, it was argued that the primary basis for the finding of "special circumstances" arose however from the need to impose not one, but two sets of cumulative sentences. It is well recognised that such a consideration may of itself constitute "special circumstances": see R v Close (1992) 65 A Crim R 55; R v Simpson (1992) 61 A Crim R 58 and Clare v R (2008) 181 A Crim R 450. 31 Moreover, it was submitted that the sentencing judge was obliged in structuring the various sentences to bear in mind considerations of totality: see Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1988) 194 CLR 610; Johnson v the Queen (2004) 78 ALJR 616. That required his Honour to consider not only the sentence to be imposed for the offence of escaping from lawful custody as well as the s166 offences, but also the sentences which the respondents had been serving at the time of their escape. In giving effect to the principles of totality, it was submitted that it was appropriate that his Honour should moderate the sentence for escaping from custody, particularly given that it was the last sentence in point of time to be imposed.

Consideration 32 The effect of what the sentencing judge did was to sentence each of the respondents, in respect of the escape offence and the other offences on the s 166 certificate, to an overall sentence of 18 months with a non-parole period of 9 months. Those sentences were made partly cumulative upon the sentences which the respondents were then serving. The net result is that the non-parole periods of the sentences imposed upon the respondents Cooper and Hookey were each extended by six months whilst the non-parole period for the respondent Dates was extended by five months. The finding of "special circumstances" means that each respondent will have a period of 9 months of supervised parole. 33 Viewed in isolation, the sentences which were imposed upon the respondents, and particularly the non-parole periods, appear to have been decidedly lenient. In making that assessment, I have had particular regard to the principles expressed in the various decisions about the potential jeopardy in which minimum security facilities are placed by those who escape from them. Moreover, given their appalling records, none of the respondents had made out a case for any particular leniency. 34 Nevertheless, I accept the submissions made on behalf of the respondents that it is neither possible, nor appropriate, to consider the sentences which were imposed for escaping from custody, in isolation from the sentences imposed for the s 166 matters and from the pre-existing sentences. In my view, the manner in which the sentences and particularly the non-parole periods were structured, merely reflected the obligation cast upon the sentencing judge to give effect to the principles of totality. Moreover, the Crown conceded that, even though the respondents' prospects of rehabilitation were extremely limited, it was nonetheless within his Honour's discretion to make a finding of "special circumstances". Furthermore, in oral argument, the Crown submitted that the starting point for the non-parole periods, before the adjustment which was necessary to reflect the finding of "special circumstances", should have been in the order of 9 months. However, once due allowance is made for that consideration, it is all but impossible, particularly in the context of a Crown appeal, for complaint to be made about the length of the non-parole period. Nor for that matter is the Crown's argument assisted by either the Judicial Commission statistics or by the guidance provided by the decisions in Robinson and Horne (supra). 35 Given all those considerations, the Crown has failed, in my view, to demonstrate that the sentences about which complaint is made are manifestly inadequate. What I have said about the manner in which the sentences were structured has largely determined the fate of this appeal. In those circumstances, the sentences themselves can provide absolutely no guidance as to the appropriate level of sentencing for offences of this kind. 36 I propose that the Crown appeal in each instance be dismissed. 37 HALL J: I agree with Buddin J.

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