Trimarchi v Regina

Factual background

1. The applicant was sentenced on an Agreed Statement of Facts which disclosed the following.
2. Police were investigating the suspected cocaine supply by the applicant. They conducted electronic surveillance of meetings that the applicant had with another man, Mr Lombardo, at the applicant's unit in June 2017. After some coded telephone conversations Lombardo attended the unit on 12 June 2017. At that time the applicant supplied him with 1.75 grams of cocaine for $500. The cocaine was in two bags and had purities of 79% and 79.5% respectively (count 1).
3. The following day police obtained a search warrant for the applicant's unit. He was apprehended in Redfern that same day and told there would be a search. When first apprehended he told police that there were "a couple of bags" in the laundry of his unit.
4. Following the execution of the search warrant police located in the laundry a "Black Flag" fly spray with removable base and a secret compartment. A resealable plastic bag of tablets containing 15.64 grams of methorphan was found in that hidden compartment (count 2).
5. A resealable plastic bag containing five tablets comprising 1.3 grams of MDMA was also found in the hidden compartment (Offence 1, Form 1) and two resealable bags containing 5.67 grams of MDMA were found in the same hidden compartment (Offence 2, Form 1).
6. Police also located an "Ajax" can with a similar compartment containing a resealable plastic bag of 19.15 grams of ketamine (Offence 3, Form 1).
7. A "Home Select" carpet cleaner can with a similar hidden compartment revealed two resealable plastic bags of cocaine totalling 1.33 grams with purities of 76% and 78% (Offence 4, Form 1).
8. A candle with a similar removable base and secret compartment containing two resealable plastic bags of MDMA (48.84 grams) was found in the applicant's bedroom (count 3).
9. A cosmetic bag containing two plastic containers of cocaine was located in the applicant's bedroom wardrobe. The first bag contained 18.37 grams of cocaine at 57% purity and the other bag contained 15.61 grams and 83% purity (count 4). Although not in the Agreed Facts, it emerged during the proceedings on sentence (and it was common ground) that a set of scales and two mobile telephones were also located in the cosmetic bag.
10. A black bear pistol (described as a BB gun) and a shoulder holster were also located in the applicant's bedroom wardrobe (count 5). Ammunition was located in a box in the bedside table (Offence 5, Form 1).
11. A plastic container of empty gelatin capsules and $200 in cash was also found in the kitchen.
12. The applicant initially denied supplying any cocaine to Mr Lombardo but admitted possession of the drugs found in his home during the search. He stated that the drugs were all for his personal use and he had not touched them for a long time. He admitted that he owned the BB gun but stated that he had purchased it as a souvenir in Canada 25 years earlier when attending an ice hockey tournament.

Proceedings on sentence

1. The applicant entered an early guilty plea in the Local Court. His proceedings on sentence were conducted on 21 June 2018. By the time of sentence he was 41 years old.
2. The Crown tendered a Pre-Sentence Report prepared by Martin Middleton dated 13 June 2018 and the applicant's criminal history. The applicant's record was minor, comprising a charge of using a false instrument in relation to a driver's license as well as two driving offences. He did not have any previous drug offences.
3. The applicant relied upon a report of his psychologist Ms Ann-Marie De Santa Brigida, a reference from a fellow employee who described him as "reliable, hardworking, [and] conscientious", and banking records from Westpac recording the fact that the applicant was paying off a mortgage for his home unit. His girlfriend of approximately two years, Dobrica Boceski, gave evidence that she had a good relationship with the applicant, held him in high regard and that they were undergoing IVF in order to conceive a child. Ms Boceski indicated that she was standing by the applicant during his period of imprisonment and that he had expressed remorse to her.
4. Before his arrest, the applicant was employed full-time working as a rigger at the Star Event Centre. He had been working in this position for approximately five years and worked six to seven days a week. He also had a supportive family with whom he regularly met. He had always been employed and had been a successful ice hockey player.
5. The applicant told both Ms De Santa Brigida and Mr Middleton that he started using ecstasy and MDMA when he was young and later took other drugs including cocaine and amphetamines on a recreational basis. He also told both of them that he had stopped using drugs two years ago when he started his relationship with Ms Boceski.
6. The applicant gave some short evidence on his proceedings on sentence. His evidence was that the drugs found at his unit were all left over from former drug use and that he did not propose to sell them. When the sentencing judge pointed out that this evidence traversed his pleas of guilty, his counsel conferred with the applicant. As a result, the applicant did not return to the witness box. Rather, counsel indicated that his instructions were that the applicant was intending to supply the drugs located in the unit, that he did not wish to give further evidence and that he did not rely on anything he had said about personal use in either the Pre-Sentence Report or the psychologist's report.
7. It was submitted on behalf of the applicant that his prospects of rehabilitation were reasonably positive and that an intensive correction order ("ICO") under s 7 of the Sentencing Act was an appropriate sentence. The imposition of an ICO was opposed by the Crown.

Remarks on sentence

1. After going through the relevant facts, the sentencing judge stated the following in relation to the objective seriousness of the matters: "The offender was the subject of information which caused authorities to have an interest in him on the basis that he was a supplier of cocaine. The calls between himself and Mr Lombardo at least on some occasions were clearly coded and he did in fact supply at least 1.75 g of cocaine to Mr Lombardo. The offender had distributed in various locations in his unit a number of prohibited drugs, in effect, a smorgasbord of prohibited drugs, being cocaine, methorphan, MDMA, ketamine and Butanediol. In respect of the individual amounts, Offence 1 which relates to 1.75 grams of cocaine is less than the trafficable quantity but approximately two times the small quantity. That is of course an offence which in the ordinary course of events considered on its own would have been dealt with in the Local Court where the jurisdictional limit is in fact two years. In respect of Offence 2, 15.64 grams of methorphan, the trafficable quantity is 3 grams: accordingly, he had five times the trafficable quality. The indictable quantity is 5 grams, so he had more than three times the indictable quantity. In respect of Offence 3, 48.84 grams of MDMA, he had 65 times the trafficable quantity, 39 times the indictable quantity, and approximately one-third of the next level of seriousness, being a commercial quantity, which is 125 grams. In relation to Offence 4, 33.98 grams of cocaine, he had 11 times the trafficable quantity of 3 grams at approximately 6 and a half times the indictable quantity of 5 grams. In my view, it is not sensible to assess the independent objective seriousness of each individual offence in the circumstances where all of the drugs were found on the one occasion, distributed in various locations or secret compartments of objects located on the offender's premises. The individual quantity is relevant to the individual charge and is of course relevant to any sentence that might be imposed in respect of that charge. Quantity alone is of course not the sole determinant of an appropriate sentence, but in my view each of the offences needs to be assessed in the overall circumstances of the location of a smorgasbord of drugs on a single occasion in the offender's premises. Overall, they evidence a serious degree of involvement with prohibited drugs."
2. As for whether the applicant had ceased using drugs his Honour stated: "As to his substance use, he reported to the Community Corrections Officer that he had for a period of 10 years abused cocaine and MDMA almost every weekend, ceasing some three years prior to the consultation for the report, attributing his abstinence to his increased maturity. There is some difficulty in accepting the offender's claim to have ceased the use of prohibited drugs some significant period of time previously in circumstances where he had a smorgasbord of drugs hidden through various containers in his premises, and was involved in the supply of a least a prohibited drug. Considering the location of various indicia of supply such as scales and unused resealable bags, it is not possible to accept that he simply had what was thousands of dollars' worth of drugs sitting around in his apartment for a period of two years after he had ceased all use, rather than what one would have expected if that was in fact a truthful statement, him having flushed them, at least when he decided to cease the use so that he would not be tempted thereafter. In any event, the offender did accept the evidence that he had supplied Mr Lombardo and that he was not capable of proving on the balance of probabilities that all of the drugs were for his personal use in the circumstances, which really is in effect an acknowledgement of the inference that I draw that he was in fact, although unbeknownst to Miss Boceski, a supplier of prohibited drugs during the time of their relationship. That poses some issues in accepting what he said in the Pre-Sentence Report as to his attitude to offending, and as to whether he is truly remorseful and contrite in relation to that offending. However, I note that at p 40 he has no previous history for the abuse of prohibited drugs or for the supply prohibited drugs. I am prepared in those circumstances to accept, although it is a guarded acceptance, that his expressions of remorse and contrition are indeed genuine."
3. His Honour noted that the applicant is from a close family. He has weekly contact with his mother and is also in close contact with his father and siblings. They are all supportive of him. His Honour accepted the evidence of Ms Boceski that the applicant was remorseful, embarrassed and had assured her that he would not commit such offences again. His Honour was satisfied that the applicant had good prospects of rehabilitation.
4. His Honour later stated that : "Any sentence imposed must reflect the objective seriousness of the offence or offences as well as providing, in my view, for both specific and general deterrence in relation to this offender and those who would commit offences of this nature. I note that the s 5 threshold, in my view, has been passed and that no submission to the contrary was made by Mr Peluso on behalf of the offender, as was appropriate."

Applicant's submissions

1. Under ground 1 the applicant contended that the sentencing judge erred by failing to make any proper assessment of the objective seriousness of the DMTA offences. It was submitted that the assessment of the objective gravity of an offence forms a significant and essential part of the sentencing process and that this requirement will not be satisfied by a bare recitation of the facts constituting the offences and a reference to the "objective features of the offences": Daher v R [2018] NSWCCA 287 at [44]-[45].
2. It was submitted that it was necessary for the sentencing judge to assess each offence for its own objective gravity even though ultimately he imposed an aggregate sentence. The fact that his Honour did not do so is evident from his observation that "it is not sensible to assess the independent objective seriousness of each individual offence". It was submitted that this case falls into the flawed category of cases referred to in Sponberg v R [2017] NSWCCA 120 at [26].
3. It was further submitted that the sentencing judge's overall approach was to consider whether the applicant was involved in trafficking to a substantial degree and this meant that his Honour failed to properly consider whether a full-time sentence was appropriate. It was submitted that this approach has been disproved in Parente v R [2018] 96 NSWLR 633; [2017] NSWCCA 284.
4. In relation to ground 2, it was submitted that the sentence imposed was manifestly excessive having regard to the misapplication of principle referred to under ground 1.

Crown submissions

1. The Crown submitted that the sentencing judge carried out his task as appropriate to the circumstances before him. There was very little to differentiate between the objective seriousness of each individual supply. This is to be contrasted with the decision of R A Hulme J in R v Campbell; R v Smith [2019] NSWCCA 1 relied upon by the applicant in his written submissions.
2. It was further submitted that his Honour made no reference to the "Clark principle" and this Court would not conclude that his Honour erroneously applied this principle: see R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep).
3. Nor, it was submitted, was the sentence "unreasonable" or "plainly unjust".

Consideration

1. This application turns on the adequacy of the sentencing judge's findings of objective seriousness. Although his Honour imposed an aggregate sentence in this matter, it is to be accepted that this does not extinguish the requirement to assess the criminality involved in the individual offences for which the applicant was to be sentenced: R v Brown [2012] NSWCCA 199 at [17].
2. The existence of the obligation on a sentencing judge to assess the objective seriousness of the offence(s) is without question. As Simpson J (as her Honour then was) (Hall J agreeing) observed in R v Campbell [2014] NSWCCA 102 at [27]: "In my opinion, the assessment of objective seriousness is, and has always been, a critical component of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [71]-[72]. These cases were all decided before judgment was given in Muldrock v The Queen [2011] HCA 39; 240 CLR 120. There is nothing in that judgment that cuts across the principle stated. Muldrock exposed error in this Court in over emphasising the assessment of objective gravity in offences to which Pt 4 Div 1A of the Sentencing Procedure Act applies, of notional offences in the mid-range of objective seriousness. It does not preclude proper attention being paid to the objective seriousness of the particular offence under consideration: see, for example, R v Koloamatangi [2011] NSWCCA 288 per Basten JA."
3. When determining a ground of appeal asserting that a sentencing judge failed to make any finding of objective seriousness, regard must be had to the sentencing reasons as a whole. In Delaney v R; R v Delaney [2013] 230 A Crim R 581; [2013] NSWCCA 150 at [56] Hoeben CJ at CL (with whom Harrison and Beech-Jones JJ agreed) stated the following in the context of sentencing for drug offences: "While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account."
4. A similar complaint was made in Gal v R [2015] NSWCCA 242 at [29], where Beech-Jones J had regard to the decision in Delaney v R; R v Delaney and then noted at [34]: "Not only did the sentencing judge not make any comment about the objective seriousness of the offence beyond that stated in [27], his Honour did not describe the facts of the offence at all. There is nothing in the sentencing judgment that reveals what the sentencing judge considered those facts represented in terms of the seriousness of the offence. A conclusion that no aggravating or mitigating factors were demonstrated by itself says little, if anything, about the relative seriousness of the offences. Even if one was cognisant of the facts of these offences there was room for disagreement about how serious the offences were. The first count involved the theft of a substantial amount of property, including children's Christmas presents. The second count involved the disturbance of a number of people in a family home. The applicant's conduct appears to be anything but premeditated. What did the sentencing judge make of those matters, if anything? As I will explain the guideline judgment in Ponfield identified a number of factors applicable to an assessment of the appropriate sentence but not all of them were applicable. Which factors, if any, did his Honour consider applicable to the two counts? In the end result it may be that his Honour considered that the applicant's conduct was neither particularly serious nor a trivial example of each offence. If so his Honour should have stated that. If his Honour did not address the issue then he should have. Either way error is established."
5. In R v Van Ryn [2016] NSWCCA 1, R A Hulme J (with whom Leeming JA and Johnson J agreed) observed at [133]: "In the summary of the sentencing judgment set out above it is clear that apart from reciting the facts of the offences the judge made no assessment of their objective seriousness or, if he did, he said nothing about it. Latham J observed in R v Cage [2006] NSWCCA 304 at [17] that: 'A bare recitation of the facts constituting the offences and a reference to the 'objective features of the offences' does not satisfy the requirements of sentencing'."
6. The scope of the requirement for a sentencing judge to make a finding of objective seriousness was considered by Macfarlan JA (with whom Latham and Campbell JJ agreed) in Sponberg v R in the context of an offence carrying a standard non-parole period. In that context Macfarlan JA observed at [26]: "It is to be expected that there will be infelicities of expression in judgments given by judges who are subject to the demands and pressures of busy lists, and the focus of this Court should be on substance rather than form (as to the latter proposition see Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [56]). Nonetheless, the inescapable conclusion in the present case is that his Honour's sentencing judgment does not contain an assessment of the objective seriousness of the Count 1 offence, either relative to other offences of its type or at all."
7. As recently noted by Johnson J in Tepania v R [2018] NSWCCA 247 at [107]: "[A]ssessment of the objective gravity of an offence forms a significant part of the sentencing process with respect to all offences". More recently, in Daher v R, Payne JA (with whom Simpson AJA and Johnson J agreed) observed at [54], in the context of considering a ground of appeal in similar terms to the present: "I accept the applicant's submission that it is not possible properly to make an assessment about the objective gravity of drug supply offences under ss 25 and 25A of the Drug Misuse and Trafficking Act without giving at least some consideration to the quantity of the prohibited drug involved. I am not persuaded that in the sentencing judgment, including in the passages relied upon by the Crown, her Honour impliedly made an assessment of the objective gravity of the offending. That is, her Honour failed specifically to refer to the factors which bore upon objective seriousness, including the quantity of drugs involved."
8. Applying these principles to the present appeal, it should first be noted that the only offence upon which the applicant stood to be sentenced which carried a standard non-parole period was count 5, the Firearms Act offence, and no complaint is made in relation to his Honour's findings in relation to that count. The statutory requirement in s 54A(2) of the Sentencing Act that an express finding of objective seriousness must be made in relation to standard non-parole offences in order to make a comparison with offences in the "middle of the range of seriousness" does not apply to the DMTA offences.
9. As can be seen from the passages extracted above at [25], his Honour went through each of the separate drug offences in turn indicating the quantity and type of drug found in each location and comparing it to the maximum quantity covered by each offence.
10. The nub of the applicant's complaint arises from his Honour's statement extracted above at [25] that it was not "sensible to assess the independent objective seriousness of each individual offence….". Taken in isolation, this comment is contrary to established sentencing principle. A sentencing judge is clearly required to make a separate finding of seriousness in relation to each separate offence. But these words relied upon by the applicant cannot be viewed in isolation. They are part of a sentence prefacing his Honour's observations that there were a number of common factors relevant to the objective seriousness of each of the drug offences in that: 1. all of the drugs were found on the one occasion in the applicant's unit; 2. all of the drugs were distributed in different locations, some in secret compartments by a moderately sophisticated method (a hidden compartment at the bottom of various aerosol cans and a candle); 3. the individual quantities relevant to the individual charges were relevant to any sentence that might be imposed in respect of that charge, although quantity alone is not the sole determinant of an appropriate sentence; and 4. each of the offences needed to be assessed in the overall circumstances of the location of a "smorgasbord" of drugs on a single occasion in the offender's premises.
11. In addition to his Honour's specific references to these matters in the impugned passage, his Honour had earlier noted that scales had also been located and the applicant had pleaded guilty to an actual supply of $500 worth of cocaine to Mr Lombardo (thus each deemed supply was not an isolated event).
12. During the hearing of this appeal Simpson AJA inquired of counsel for the applicant how the DMTA offences could be distinguished from each other (apart from their quantity). Counsel replied: "They could be distinguished by type of drug, which is related to quantity but nevertheless they are different types of drugs. As I've indicated they could be distinguished by location in the unit, albeit there's a small difference between the two and could be distinguished that way. They would be the primary points of differential characterisation in my submission, together with the point I made earlier about the actual supply pertaining to cocaine only."
13. It is difficult to see on the facts in this matter how where in the unit the drugs were located could increase or decrease the criminality of each separate offence. The agreed statement of facts did not otherwise disclose anything further about each of the separate drugs found in the unit that would distinguish their respective criminality. This leaves the only two factors which were not common to all of these offences as being the amount and type of drug; factors his Honour identified in the passages I have extracted above at [25] in any event.
14. The indicative sentences identified by his Honour differ from each other. The difference between these indicative sentences corresponds to the differences in drug types and quantities. That is, it is clear that his Honour had regard to both the amount found in each location and the type of drug as being a relevant factor increasing or decreasing the relevant penalty to be imposed for each offence. The highest indicative sentence on count 3 was for a larger amount of drugs and it was also the offence in relation to which five of the six additional matters were taken into account under s 32 of the Sentencing Act.
15. I am not satisfied that his Honour's reasons disclose that he failed to make an assessment as to the objective seriousness of each separate drug offence. What his Honour did was identify the common features and the different features (the quantities and type of drug) of each offence. Whilst it is to be accepted that his Honour did not repeat the common features four times (after each drug offence pertaining to the drugs found in the unit), his decision not to do so and his reasons why were expressly stated.
16. As for the applicant's contention that the sentencing judge misdirected himself by asking the question posed in R v Clark, since disapproved in Parente v R, this complaint cannot be sustained. There is no reference to the decision of R v Clark, or the principle said to have arisen from it, in his Honour's remarks on sentence. That "Clark principle" was that unless "exceptional circumstances" existed, an offender who has been trafficking in drugs "to a substantial degree" was to be sentenced to a term of full-time imprisonment. To the extent that it is implicitly submitted that his Honour failed have regard to the decision in Parente v R, it is noted that the applicant's counsel brought that decision to the attention of the sentencing judge in the context of submitting that an ICO could be imposed. The transcript of the proceedings on sentence reflects that his Honour indicated that he was already aware of the decision.
17. The applicant's complaint that his Honour incorrectly applied the "Clarke principle" was based on two matters. The first was the fact that his Honour made reference to there being a "smorgasbord" of drugs in the applicant's unit. The word "smorgasbord" is a word of Swedish origin. It is defined in the Macquarie Dictionary as meaning "a buffet meal of various hot and cold hor d'oevres, salads, meat dishes etc". The second of the two definitions provided for the word in the Macquarie Dictionary is "a wide choice or variety". It is clear that his Honour was using the term in the context of this second definition. That is, that a wide variety of drugs were found. It does not follow from the fact that his Honour had regard to the variety of drugs involved that his Honour applied the "Clark principle".
18. The second matter relied upon by the applicant to assert that his Honour incorrectly applied the "Clark principle" was the fact that his Honour was satisfied that the s 5 threshold had been passed. Section 5(1) of the Sentencing Act provides that a "court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate". His Honour's finding that the threshold had been met in this case followed his Honour's statements that he was satisfied that the applicant was "seriously involved with prohibited drugs" and that the sentence imposed must reflect the objective seriousness of the offences and provide "for both specific and general deterrence in relation to this offender and those who would commit offences of this nature."
19. For these reasons the applicant has not established that the sentencing judge erred in his assessment of the applicant's offending by failing to make any or any proper assessment of the objective seriousness of that part of the applicant's offending comprising offences under the DMTA.
20. As for ground two, no separate written submissions were made in relation to the applicant's contention that the sentence was manifestly excessive. Rather, it was submitted that the error identified under ground one led to the sentence being manifestly excessive. Despite this, at the hearing of the appeal, the applicant's counsel further submitted, in support of ground two, that there was limited indicia of supply, only $200 cash located, a "number" of resealable bags were found, "some" gelatine capsules and no records of sales of any type. Thus, it was submitted, there was "nothing to support a motivation of making a profit on the part of the applicant". That is, this was a case of "recoupment rather than profit" given the change in the applicant's life circumstances.
21. In order to establish that the sentence imposed on the applicant was manifestly excessive it is necessary for him to establish that it was "unreasonable" or "plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. It is not a question of whether this court would have exercised its sentencing discretion differently: Markarian v The Queen at [28].
22. The applicant was sentenced to an aggregate sentence of three years imprisonment with a non-parole period of two years. That sentence was imposed for four supply offences, each of which carried a maximum penalty of 15 years imprisonment, and a weapons offence carrying a maximum penalty of 14 years imprisonment with a standard non-parole period of four years imprisonment. The maximum penalty is a relevant guidepost when considering whether a sentence is manifestly excessive. In addition, six further offences were taken into account under s 32 of the Sentencing Act. Although these Form 1 offences were not relevant to the assessment of the objective seriousness of counts 3 and 5, such offences may be taken into account by the sentencing judge so as to give greater weight to personal deterrence and retribution: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42].
23. The amounts of the prohibited drugs involved were not insignificant. The actual supply of cocaine, in the context of the coded telephone calls, was not an isolated incident. Some degree of accumulation was warranted given the different types of drugs involved. By reference to the indicative sentences, one of which was two years and six months imprisonment, it is clear that considerable concurrence was allowed. In addition, although his Honour described his adjustment of the relationship between the non-parole period and the head sentence as "minor", in fact the adjustment resulted in a ratio of 66.6% rather than the statutory ratio of 75%, an adjustment that could not be described as "minor".
24. As the High Court observed in Lowndes v The Queen (1999) 195 CLR 665 at 671-672; [1999] HCA 29 at [15] (footnote omitted): "Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
25. Even allowing for the applicant's favourable subjective case, including his previous solid employment history and absence of prior convictions of this type, the applicant has failed to establish that the sentence imposed on him was unreasonable or plainly unjust. That is the test; not whether this court may have exercised its discretion in a manner different to that of the sentencing judge.

ORDERS

1. The orders I would propose are: 1. Leave to appeal granted. 2. Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2019