Gilshenan v R

1. [1]

   MACFARLAN JA: I agree with Johnson J.

2. [2]

   JOHNSON J: The Applicant, Mark Gilshenan, seeks leave to appeal against sentences imposed at the Penrith District Court on 1 February 2019 for child pornography and related offences.

The Offences and Sentences

1. [3]

   Following pleas of guilty, the Applicant was sentenced by his Honour Judge Hanley SC as follows:

2. [4]

   In passing sentence on Count 1, the Applicant requested the sentencing court to take into account, on a Form 1, an offence of stalk and intimidate committed between 1 January 2013 and 31 December 2013 which, if prosecuted separately, is punishable by a maximum penalty of two years’ imprisonment.

3. [5]

   The overall sentence for both the Commonwealth and State offences involved an effective head sentence of imprisonment for four years and four months commencing on 23 December 2017 with a minimum term of two years and four months, with the Applicant to be released by way of recognisance release order on 22 April 2020 with respect to Count 2, the offence under s.474.19(1) Criminal Code (Cth).

4. [6]

   The Applicant pleaded guilty in the Local Court on 6 July 2018 with respect to Counts 2, 3 and 4, the offences under s.474.19(1) Criminal Code (Cth) and s.91H(2) Crimes Act 1900 (NSW). The sentencing Judge allowed a 25% discount for the utilitarian benefit of the pleas of guilty on these matters.

5. [7]

   With respect to Count 1, the plea of guilty was entered after committal for trial and following negotiations on 28 September 2018. His Honour allowed a 15% discount for the utilitarian benefit of the plea on that matter.

Grounds of Appeal

1. [8]

   By Notice of Application for Leave to Appeal filed on 21 August 2019, the Applicant relies upon the following grounds of appeal:

2. [9]

   The Applicant’s Notice provided the following particulars of the claim of manifest excess in Ground 4:

3. [10]

   It will be observed that the particulars of Ground 4 themselves contain assertions of express error on the part of the sentencing Judge in various respects. This approach is not consistent with the concept of manifest excess which is based upon a claim of an unreasonable or plainly unjust sentencing outcome rather than the commission of express errors in that process: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[60].

4. [11]

   That said, the particulars of Ground 4 will be approached as arguments advanced by the Applicant to seek to explain why it is contended that a manifestly excessive sentencing outcome resulted: Carroll v The Queen (2009) 83 ALJR 579; [2009] HCA 13 at [9].

Facts of Offences

1. [12]

   The sentencing Judge made findings of fact in accordance with an Agreed Statement of Facts tendered in the District Court. His Honour said (ROS2-7):

2. [13]

   It will be observed that the sentencing Judge made reference when considering the access child pornography offence to the “Child Abuse Material Interpol Baseline Categorisation” which states:

3. [14]

   The Interpol Baseline Categorisation is a further form of classification of child abuse material, in an area where the COPINE Scale and the ANVIL or CETS Scale have also been utilised: R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 at [73]-[75].

4. [15]

   The Applicant was arrested and charged with these offences on 27 November 2017 with bail being refused.

5. [16]

   The Applicant has been in continuous custody since 27 November 2017. It should be observed, however, that he served the balance of parole for prior child pornography offences between 27 November 2017 and 23 December 2017.

The Applicant’s Subjective Circumstances

1. [17]

   The Applicant was 43 years old at the time of the offences and 44 years old at the time of sentence.

2. [18]

   The Applicant has a prior criminal history. On 25 May 1995, he was sentenced at the Parramatta Local Court for offences of larceny as a clerk and embezzlement to perform 100 hours of community service, as well as being placed on a 12-month good behaviour bond.

3. [19]

   On 10 September 1997, the Applicant was sentenced at the Parramatta Local Court for an offence for wilful and obscene exposure in or near a public place or school, for which he was placed on a two-year good behaviour bond with probation supervision.

4. [20]

   On 14 September 2015, the Applicant was sentenced in the Sydney District Court for offences committed in 2013 and 2014 of possess child abuse material (three counts), filming a person in a private act without consent (two counts), using a carriage service to transmit child pornography and using a carriage service to harass. For these offences, the Applicant was sentenced by his Honour Judge Craigie SC to a total effective sentence of imprisonment for two years and nine months commencing on 23 March 2015 and expiring on 22 December 2017 with an effective non-parole period of one year and nine months concluding on 22 December 2016.

5. [21]

   On 27 April 2016, the Applicant was sentenced in the Parramatta Local Court for offences committed between December 2015 and January 2016 of using a postal service to menace or harass, stalk or intimidate intending to cause fear of physical harm and contravening an apprehended violence order, with concurrent terms of imprisonment for 12 months being imposed commencing on 27 April 2016 and concluding on 26 April 2017.

6. [22]

   The present offences were committed whilst the Applicant was on parole. The Applicant’s parole was revoked on 26 November 2017.

7. [23]

   A letter from the Applicant’s mother dated 31 January 2019 was tendered in the District Court which outlined the efforts of the Applicant’s parents to assist him and the tasks which he fulfilled in the household to assist his parents.

Psychological Evidence Concerning the Applicant

1. [24]

   A report of Kathryn Wakely, forensic psychologist, dated 12 January 2019 was tendered in the Applicant’s case on sentence in the District Court. Ms Wakely said the following with respect to the Applicant’s attitude to the present offences (paragraph 45):

2. [25]

   A little later, Ms Wakely stated (paragraph 49):

3. [26]

   Ms Wakely noted that the Applicant fell within the “well above average risk” category with respect to the risk of commission of another sexual offence by reference to the STATIC-99R assessment tool.

4. [27]

   Ms Wakely noted a number of dynamic risk factors to be taken into account with respect to the Applicant (paragraph 59):

5. [28]

   Ms Wakely’s clinical opinion included the following (paragraph 64):

6. [29]

   Ms Wakely concluded her report with the following very guarded assessment (paragraphs 66-67):

Some Further Extracts from the Sentencing Remarks

1. [30]

   Having regard to the grounds of appeal, it is appropriate to make mention of a number of findings and conclusions expressed in his Honour’s detailed and careful sentencing remarks.

2. [31]

   The sentencing Judge made a number of findings concerning the objective seriousness of the offences. With respect to Count 1 (the fail to comply with reporting obligations offence) his Honour said (ROS8):

3. [32]

   His Honour referred to a number of factual features of this offence and concluded (ROS9):

4. [33]

   The sentencing Judge then turned to Count 2 (the offence under s.474.19(1) Criminal Code (Cth)) (ROS9-10):

5. [34]

   The sentencing Judge made the following findings concerning Count 3 (the offence of possessing child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW)) (ROS10-12):

6. [35]

   Finally, his Honour made findings concerning the disseminate child abuse material offence contained in Count 4 (ROS12-13):

7. [36]

   Given the complaints in the second ground of appeal, it is appropriate to set out the way in which the sentencing Judge approached the Applicant’s prior criminal history (ROS13-14):

8. [37]

   The sentencing Judge then addressed the Applicant’s pleas of guilty and the issue of remorse where his Honour referred to parts of Ms Wakely’s report. Having done so, his Honour concluded (ROS16):

9. [38]

   The sentencing Judge then turned to the Applicant’s other subjective circumstances and personal history together with mental health issues. His Honour expressed the following conclusion with respect to the Applicant’s prospects of rehabilitation and the risk of him reoffending (ROS21):

10. [39]

    The sentencing Judge referred to the Applicant’s mental health issues and autism in reaching the following conclusions (ROS21-22):

11. [40]

    His Honour noted that the Applicant’s case was “a difficult sentencing matter” (ROS22). His Honour had regard to the need for both specific and general deterrence in sentencing the Applicant (ROS22-23):

12. [41]

    His Honour made a finding of special circumstances with respect to the State offences to allow a longer period of time in the community to ensure that the Applicant was properly supervised with some intensity to achieve a situation that he can live within the community crime-free and manage his underlying sexual predilections (ROS24).

13. [42]

    His Honour applied the totality principle in the following way (ROS25-26):

14. [43]

    The sentencing Judge approached the Form 1 offence (to be taken into account on sentence on Count 1) in the following way (ROS26):

15. [44]

    His Honour then proceeded to sentence the Applicant in the manner summarised earlier in this judgment, directing that the recognisance release order operate from 22 April 2020 and be subject to the following conditions (ROS26-27):

Ground 1 - Alleged Error with Respect to Sentence for the Offence Under s.474.19(1) Criminal Code (Cth) (Count 2)

1. [45]

   Mr Dean, counsel for the Applicant, submitted that the sentencing Judge had erred in considering that the gravamen of s.474.19(1) Criminal Code (Cth) was the misuse of the Internet as opposed to the relative severity of the content accessed in assessing the objective seriousness of an offence. Counsel drew this phrase from the extract from the sentencing remarks set out earlier (at [33]).

2. [46]

   It was submitted for the Applicant that the sentencing Judge had effectively diverted attention from the particular factual circumstances of the offence with what was said to be an inaccurate statement with respect to the gravamen of a s.474.19(1) offence.

3. [47]

   Counsel submitted that the objective seriousness of this offence was at a low level with the Internet searches being crude and unsophisticated and the content being at the lowest level that could constitute child pornography. It was submitted that the sentencing Judge had erred by not correctly addressing the objective seriousness of the present offence.

4. [48]

   The Crown submitted that no error had been demonstrated in accordance with the stated ground of appeal. It was submitted that it was necessary to read all that his Honour said concerning this offence, leading to a finding that the objective seriousness of the offence fell below the mid-range of objective seriousness.

5. [49]

   It is necessary to read his Honour’s sentencing remarks with respect to the s.474.19(1) offence fully and fairly (see [33] above). When that is done, it is clear that his Honour has addressed relevant matters concerning the objective gravity of that offence including the nature of the material involved.

6. [50]

   His Honour’s reference to the gravamen of the offence concerning misuse of the Internet in the context of child pornography was an acknowledgement that, in an area where Commonwealth and State offences were frequently prosecuted together, a s.474.19(1) offence was based upon the use of the Internet in the area of accessing and disseminating child pornography. What his Honour said in that respect reflects what this Court said in R v Porte at [55]-[56].

7. [51]

   His Honour’s reference to this aspect is an orthodox and appropriate observation to make with respect to a Commonwealth child pornography offence and was accompanied by his Honour’s description of the offence and characterisation of its objective seriousness by reference to factors which bore upon that issue, including the period of time during which this offence was committed, the nature and classification of the child abuse material, the number of images and the fact that the Applicant had visited the sites on numerous occasions for the purpose of his own sexual gratification. His Honour took into account the sites visited, the “unsophisticated nature of the searching” and the fact it did “not appear to be well planned”.

8. [52]

   His Honour assessed the offence in Count 2 as “falling below the midrange of objective seriousness”, a finding which was clearly open in the circumstances of the case.

9. [53]

   I would reject the first ground of appeal.

Ground 2 - Claim of Error in the Sentencing Judge’s Use of the Applicant’s Prior Criminal History on Sentence

1. [54]

   Counsel for the Applicant accepted that his prior offending in this area meant that he was not entitled to the same leniency as someone with no prior convictions. It was submitted, however, that his Honour had erred in his reliance upon Veen v The Queen (No. 2) in the manner set out earlier in this judgment (at [36]).

2. [55]

   The essence of the argument advanced for the Applicant under this ground was that his offending in the present offences was less serious than that involved in his previous child pornography offences, so that reliance on the principles in Veen v The Queen (No. 2) was misplaced.

3. [56]

   The Crown submitted that his Honour was entitled to adopt the approach challenged by this ground of appeal upon the basis that the Applicant had once again committed child pornography offences, based upon his predilection for prepubescent girls against the background of having been sentenced for child pornography offences, involving prepubescent girls just a few years ago.

4. [57]

   The Crown submitted that it was open to the sentencing Judge to adopt the approach challenged in this ground of appeal.

5. [58]

   It was the fact that the Applicant had been sentenced to a significant term of imprisonment for child pornography offences in 2015. Having been released on parole for those offences, the Applicant committed further child pornography offences. His motivation for the commission of the 2015 offences and the 2017 offences flowed from his sexual attraction to prepubescent girls.

6. [59]

   In Veen v The Queen (No. 2), Mason CJ, Brennan, Dawson and Toohey JJ said at 477-478:

7. [60]

   The principles in Veen v The Queen (No. 2) and Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at [13]-[14] have been taken to establish that the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence which circumstances do not encompass prior convictions: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [24]. However, as was said in Veen v The Queen (No. 2), an antecedent criminal history is not relevant only to an offender’s claim of leniency. If an offender manifests in the commission of the offences for which sentence is to be passed “a continuing attitude of disobedience of the law”, then “retribution, deterrence and protection of society” play a part on sentence, although not in a manner which allows imposition of a sentence which is disproportionate to the objective gravity of the offences.

8. [61]

   His Honour’s approach to the Applicant’s prior criminal history was open in this case where the Applicant was a repeat offender motivated by the same aberrant drives which led to the commission of the earlier offences. The sentencing Judge was well aware of the gravity of the earlier offences compared with that of the offences for which the Applicant was to be sentenced.

9. [62]

   The principles emerging from Veen v The Queen (No. 2) and R v McNaughton are not moderated where a repeat offender commits a lesser form of offence of the same type. What is pertinent is that the Applicant demonstrated a continuing attitude of disobedience of the law in the form of repeat child pornography offences.

10. [63]

    It has not been demonstrated that his Honour erred in the manner alleged in the second ground of appeal.

Ground 3 - Claim of Error in the Sentencing Judge’s Approach to the Form 1 Offence Taken into Account on Sentence for Count 1

1. [64]

   Counsel for the Applicant submitted that the sentencing Judge had erred in “slightly elevating the sentence” on Count 1 by reason of the Form 1 offence referred to at [4] above (see [43] above). It was submitted that the photographs of a female child apparently taken in 2013 were tied up in the offences for which he was sentenced in 2015 and that no additional allowance should have been involved to elevate the sentence on Count 1 for this offence.

2. [65]

   It was submitted that, in effect, the Form 1 offence was entirely encompassed within the offences for which the Applicant was sentenced in 2015.

3. [66]

   The Crown submitted that it was open to the sentencing Judge to take the approach adopted to the Form 1 offence which was a separate offence, not dealt with at the time of the 2015 offences, which the Applicant requested to be taken into account on sentence on Count 1.

4. [67]

   The Applicant requested the sentencing Judge to take into account the Form 1 matter in passing sentence for the offence contained in Count 1. His Honour was well aware that the Form 1 matter involved photographs taken in 2013, but retained on undeveloped film by the Applicant (see [12] above). The film contained 16 photographs, two of which depicted a young female child, eight to 10 years old, playing in her backyard. The Applicant had taken these photographs of the young child who lived next door in 2013, with the photographs taken over the back fence. The Applicant had retained the film although it had not been developed.

5. [68]

   It was a matter for the sentencing Judge to determine what impact the Form 1 offence would have in passing sentence on Count 1. It was entirely open to the sentencing Judge to determine that some slight elevation in sentence was appropriate as a result of the Form 1 offence. Such an approach is entirely consistent with what this Court said in Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [22]-[23].

6. [69]

   No error has been demonstrated in his Honour’s approach to this matter so that the complaint contained in Ground 3 ought be rejected.

Ground 4 - Claim that the Sentence was Manifestly Excessive

1. [70]

   Counsel for the Applicant submitted that the sentences imposed for the offences were manifestly excessive as was the element of accumulation so that the total effective sentence was also manifestly excessive.

2. [71]

   The Applicant relied upon the submissions mentioned at [9] above in support of this ground of appeal.

3. [72]

   Counsel for the Applicant submitted that there was an excessive level of accumulation with respect to the sentence for the s.474.19(1) offence where the offence was said to be of a low level of objective seriousness.

4. [73]

   It was submitted that the Applicant’s offences were of lesser gravity than the 2015 offences and that this aspect bore as well upon the submission that manifestly excessive sentences had been passed.

5. [74]

   The Applicant sought to rely upon a number of sentencing decisions in other cases in support of the claim of manifest excess. In this respect, the Applicant relied upon Hong v R [2017] NSWCCA 238, Peters v R [2018] NSWCCA 126, Dennis v R [2017] VSCA 251 and Maine v R [2018] VSCA 56. Particular reliance was placed upon Dennis v R and Maine v R where the offender had a prior history of offending.

6. [75]

   The Crown submitted that neither the individual sentences nor the total effective sentence was manifestly excessive. It was submitted that the authorities relied upon by the Applicant did not demonstrate any error on the part of the sentencing Judge nor did they establish a range of sentence as against which the present sentences could be measured, and certainly not a range which supported a claim of manifest excess in the present case.

7. [76]

   The Crown submitted that these were repeat child pornography offences committed by the Applicant when subject to parole for offences of that class. The risk assessment undertaken by the psychologist who reported for the Applicant indicated an elevated risk of the Applicant reoffending. The Crown submitted that the effective custodial component of the overall sentence was 53.8% so that the Applicant received a significant level of conditional liberty as part of the overall sentence.

8. [77]

   It was submitted that the sentences were not manifestly excessive.

9. [78]

   It is necessary to keep in mind the approach to be taken by this Court in determining a ground of appeal which asserts that a sentence was manifestly excessive.

10. [79]

    In Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221, this Court said at [443]:

11. [80]

    The sentences imposed for each offence were set out at [3] above in a table which indicated the maximum penalty for each offence.

12. [81]

    The findings of the sentencing Judge concerning the offences and assessments as to their objective gravity were referred to earlier in this judgment (at [31]-[35]). It is clear that his Honour made careful and considered assessments with respect to the objective seriousness of the offences in this case. In addition, his Honour had regard to the fact that the Applicant was subject to parole at the time of the offences having a prior history for child pornography offences. Added to this (unhelpfully for the Applicant) was the detailed report and opinion of Dr Wakely, psychologist, who identified a continuing lack of insight on the part of the Applicant accompanied by the maintenance of his sexual predilection for prepubescent girls (see [24]-[29] above).

13. [82]

    General deterrence is an important factor on sentence for this class of offence: R v Freedman (2017) 268 A Crim R 453; [2017] NSWCCA 201 at [77]; Peters v R at [45].

14. [83]

    In addition, there was a need for specific deterrence to be reflected on sentence given the Applicant’s equivocal attitude towards offending of this type (see [24]-[25], [28] above).

15. [84]

    To the extent that the Applicant particularised Ground 4 by reference to Grounds 1-3, I note that each of those grounds of appeal has been rejected in this judgment when considered individually. The sentencing Judge did not err in his findings with respect to the objective seriousness of the s.474.19(1) offence nor the approach taken to the Form 1 offences.

16. [85]

    The level of accumulation was a discretionary matter for the sentencing Judge. For reasons explained (at [42] above), his Honour directed that the sentence on Count 2 commence at the completion of the sentences for the State offences in Counts 1, 3 and 4. It was appropriate for the sentencing Judge to keep in mind the different vices to which the Commonwealth and State offences were directed in determining issues of concurrence and accumulation: R v De Leeuw [2015] NSWCCA 183 at [114]; R v Freedman at [84]-[85]. No error has been demonstrated in his Honour’s approach in that respect.

17. [86]

    Although the sentence of three years’ imprisonment for Count 2 was cumulative upon the sentences for the State offences, his Honour directed the release of the Applicant by way of recognisance release order after only one year. Clearly, his Honour had in mind an extended period of supervision of the Applicant in the community to aid his rehabilitation and protect the community. The custodial component was only 53.8% of the total effective sentence.

18. [87]

    The Applicant placed considerable emphasis on two decisions of the Victorian Court of Appeal, Dennis v R and Maine v R as comparators. It was submitted that when regard is had to these two cases, the overall sentence imposed was manifestly excessive.

19. [88]

    In Alarcon v R [2018] NSWCCA 298, Schmidt J (Basten JA and Fagan J agreeing) said at [86]:

20. [89]

    Subject to this significant caveat, I turn to the Victorian decisions upon which the Applicant relies.

21. [90]

    It is firstly convenient to deal with the similarities between the three cases. In all the cases, the offender had a previous history of similar offending for which they had been convicted and, by extension, the sentencing Judges had made adverse findings with respect to their prospects of rehabilitation and risk of reoffending. Further, none of the offenders could rely on their youth as a mitigating factor (although the Applicant was the youngest of the three, 44, at the time of sentence).

22. [91]

    A key, and obvious, feature which distinguishes the Applicant’s case from those in Dennis v R and Maine v R is that the Applicant was on parole for similar offences (including an offence under s.474.19(1) Criminal Code (Cth)) when he committed the offences the subject of this appeal.

23. [92]

    In Maine v R (at [2], [19]), it was noted that the offender had reoffended “soon after the completion of his parole period [for similar offending] and after he had completed a sex offenders rehabilitation program” and this “elevated the importance of specific deterrence”. The offender in Dennis v R was not on parole when he committed his offences, and at least five years had passed since his previous offending of a similar nature.

24. [93]

    The Applicant was sentenced to a term of imprisonment of three years, with a non-parole period of 12 months for his s.474.19(1) offence. He received a total effective sentence of four years and four months, with an effective minimum term of two years and four months.

25. [94]

    Both the offenders in the Victorian cases received higher individual sentences for their s.474.19(1) offences. In Dennis v R, following a successful appeal, the offender received a sentence of imprisonment for three years and three months, with a non-parole period of one year and six months for the s.474.19(1) offence – his total effective sentence was imprisonment for three years and nine months, with a minimum term of two years. In Maine v R, the offender received a sentence of three years and six months, with a non-parole period of two years for the s.474.19(1) offence – his total effective sentence was four years and six months with a minimum term of three years.

26. [95]

    The Applicant here pleaded guilty to the three State offences mentioned earlier (at [2]).

27. [96]

    The Victorian offenders each pleaded guilty to an offence of knowingly possess child pornography contrary to s.70 Crimes Act 1958 (Vic). That section (now repealed) is virtually identical to the comparable New South Wales offence under s.91H(2) Crimes Act 1900, save for a significant difference in the available maximum penalty. The offence to which the Applicant pleaded guilty (Count 3), carried a maximum penalty of 10 years’ imprisonment. The Victorian offence carried a maximum penalty of imprisonment for five years. Further, the offender in Dennis v R had also pleaded guilty to an offence of failing to comply with his reporting conditions (analogous to the New South Wales offence), but did not have an offence on a Form 1 attached.

28. [97]

    As noted earlier, the offender in Maine v R had undergone a sexual offenders’ rehabilitation program. Neither the Applicant (as specifically noted by the sentencing Judge at ROS22), nor the offender in Dennis v R, had previously undertaken such a rehabilitation program.

29. [98]

    It was accepted in Dennis v R, that the offender suffered from a condition that meant he had “difficulty processing information and organising himself with a view to complying with legal obligations, and learning from his mistakes”. The Court observed (at [114]-[118]) that this had a causal link to his failure to report, but did not affect the child pornography offences. The sentencing Judge in Dennis v R (at [50]) had accepted in mitigation that, because of his condition, it would be difficult for the offender in custody and that his condition may also deteriorate. No such evidence had been led in Maine v R. In this case, the sentencing Judge had taken into account that the Applicant suffered from depression and anxiety, and that he had a “sad background, limited by his Autism Spectrum Disorder” (ROS21-22).

30. [99]

    A close analysis of these cases does not assist the Applicant. However, it does serve to illustrate the oft-repeated point that there will inevitably be differences between cases both in terms of the objective circumstances of the offending and the subjective circumstances of the offender: RLS v R [2012] NSWCCA 236 at [132]; Alarcon v R at [86] (see [88] above).

31. [100]

    The Applicant’s claim of manifest excess is not assisted either by the decisions of this Court in Hong v R and Peters v R with respect to sentencing principles and sentencing patterns for this class of offence. If anything, those decisions serve to fortify a conclusion that the sentences in the present case were open to the sentencing Judge.

32. [101]

    I do not consider that the cases relied upon by the Applicant serve to demonstrate that any of the individual sentences, or the total effective sentence, were manifestly excessive. They constitute sentencing decisions reached in the particular facts of each case.

33. [102]

    The Applicant has failed to demonstrate that either the individual sentences, the level of accumulation or the total effective sentence has given rise to a sentencing outcome which is unreasonable or plainly unjust. The sentencing Judge’s approach in this case, which was characterised accurately as being a “difficult sentencing matter” (see [40] above), was balanced and reasonable in the circumstances of the case.

34. [103]

    The Applicant has not demonstrated manifest excess. Accordingly, this ground of appeal ought be rejected.

Conclusion

1. [104]

   The Applicant has failed to make good any of his grounds of appeal.

2. [105]

   I propose the following orders:

3. [106]

   CAVANAGH J: I agree with Johnson J.