Waters v R

1. [1]

   WARD P: I agree with the orders proposed by Adamson JA broadly for the reasons her Honour has given. I do not comment on the decision taken by the Crown not to concede error in relation to grounds 2 and 3.

2. [2]

   ADAMSON JA: Tristan Waters (the applicant) seeks leave to appeal against the sentence imposed on him by Mahony SC DCJ (the sentencing judge) on 19 April 2024 of 20 years imprisonment commencing on 16 January 2018 and expiring on 15 January 2038 with a non-parole period of 12 years. The applicant will be eligible for parole on 15 January 2030. The sentence imposed was in respect of the offence in count 2 of the indictment (the possession offence), which charged:

3. [3]

   On the first day of the trial the applicant pleaded guilty to count 2, on the basis that the time period of his involvement in the conspiracy should be limited to the period between 26 December 2017 and 16 January 2018. He was acquitted of count 1 which charged that he had conspired to import a border-controlled drug (the importation offence).

4. [4]

   The applicant was tried jointly with David Campbell, who was convicted after trial of the possession offence and was acquitted of the importation offence. On 3 May 2024, the sentencing judge imposed a term of imprisonment of 18 years commencing on 16 January 2018 and expiring on 15 January 2036, with a non-parole period of 10 years and 6 months. Rohan Arnold, who was alleged to be party to the conspiracies in counts 1 and 2, was sentenced by Culver DCJ on 20 February 2020, having pleaded guilty to the importation offence.

5. [5]

   The applicant seeks leave to appeal on the following grounds:

6. [6]

   For the reasons which follow, I consider that grounds 2, 3 and 4 have been made out. Ground 6 has not been made out. In these circumstances, it is not necessary to address grounds 1 or 5 because this Court is required to resentence the applicant in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell).

7. [7]

   I consider that leave to appeal ought be granted but the appeal ought be dismissed on the basis that no lesser sentence is warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW).

The proceedings on sentence in the Court below

1. [8]

   The parties agreed on certain limited facts for the purposes of sentencing, which were reproduced in the sentencing judgment, R v Waters [2024] NSWDC 126 (SJ) at SJ [5], as follows:

2. [9]

   The applicant did not give evidence at the sentence hearing and relied on documentary evidence.

3. [10]

   The parties agreed that the sentencing judge ought find the facts on sentence in accordance with the agreed facts set out above and on the basis of the evidence at the trial, in accordance the principles in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.

4. [11]

   The Crown submitted that the utilitarian value of the applicant’s plea ought be reduced because the trial still had to continue against Mr Campbell, who did not offer to plead guilty to the possession offence. It would appear that the Crown’s submission was the genesis for the error which has been established in proposed ground 4 (that the sentencing judge took into account the actual utilitarian benefit of the plea rather than, as would have been correct, its potential utilitarian benefit).

5. [12]

   Mr Dalton SC, who appeared with Mr Hogan for the applicant in the Court below and with Mr Woods in this Court, sought a discount of 15% for the utilitarian value of the applicant’s plea. In oral submissions, to the sentencing judge, he submitted that “[e]ven looking at the state system [the discount for the utilitarian value of the plea] would be at least 10%”.

6. [13]

   The sentencing judge set out the facts “known to the court and proved beyond reasonable doubt derived from the trial” at SJ [6] as follows:

7. [14]

   The sentencing judge noted that Mr Arnold had already been sentenced by Culver DCJ on 20 February 2020 for the importation offence (the offence of which the applicant and Mr Campbell had been acquitted).

8. [15]

   At SJ [9], his Honour summarised the letter dated 13 February 2024 provided by Sian Waters, the applicant’s wife, in which she said that she had been with the applicant for 14 years of which they had been married for 11 and had cared for him during multiple surgeries. Because of the applicant’s incarceration, she was caring for their young son alone and suffered personal and financial hardships. She said that they had previously run a development business together.

9. [16]

   The sentencing judge also summarised, in SJ [10]-[13], a letter from the applicant’s father as to the courses the applicant had undertaken while in custody and who said that the applicant had expressed his regret to him about his criminal conduct and apologised to his wife for the emotional and financial struggles which she has experienced as a consequence. The letter noted that the applicant suffers from both Crohn’s disease and ulcerative colitis.

10. [17]

    The sentencing judge summarised letters from those who had come to know the applicant in prison. Rev. S House, a chaplain at the Metropolitan Remand & Reception Centre (MRRC) at Silverwater, said that the applicant had expressed “extreme remorse for his actions and the pain, stress and cost it had caused his family, friends, loved ones and the community”: SJ [14]. His Honour also noted that the letter said that the applicant was employed in a trusted position as a clerk to the Manager of Industries. Mr F Lemusu, an employee of Community Services at the MRRC, said that the applicant had “immersed himself in rehabilitative and proactive activities in custody” and that “[his] contribution had a major impact on both the operational functionality at the MRRC, and the health and safety of all officers, staff, visitors and the inmate population”: SJ [15].

11. [18]

    The sentencing judge also referred to expert reports, including a report of Lucienne Barhon, a clinical neuropsychologist, dated 7 February 2024 and a report of Dr Antony Henderson, consultant forensic psychiatrist dated 14 February 2024. Dr Henderson diagnosed the applicant as suffering from Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder and an Alcohol and Stimulant (cocaine) Use Disorder which was in remission: SJ [25]. These diagnoses were also made by Professor SJ Woods, a forensic psychologist in his report dated 13 February 2024.

12. [19]

    The sentencing judge summarised the plea negotiations between the applicant and the Commonwealth Director of Public Prosecutions (CDPP) at SJ [29]:

13. [20]

    The sentencing judge noted a Sentencing Assessment Report (SAR) of Ms T Rosewall dated 18 October 2023, which was tendered by the applicant as well as by the Crown. At SJ [32], his Honour extracted the following passage from the report:

14. [21]

    His Honour also noted the applicant’s “letter of apology”, which his Honour summarised in part at SJ [34] as follows:

15. [22]

    His Honour observed that the letter also contained the applicant’s description of his period in gaol in Serbia, before he was extradited to Australia and the hardship he suffered there. The sentencing judge referred to the evidence that there had been a total of 129 days of 24-hour lockdowns in 2021 and 2022 at MRCC.

16. [23]

    The sentencing judge summarised in detail the submissions of both parties. As to the conspiratorial agreement, his Honour found, at SJ [99]:

17. [24]

    His Honour continued at SJ [100]:

18. [25]

    The sentencing judge addressed the applicant’s role in the conspiracy. His Honour found that the applicant joined the conspiracy “at a very late stage, on or about 26 December 2017, and that his role in the conspiracy was to facilitate the return of the prohibited drugs by an exchange of money to take place at a meeting of the Metropol Hotel in Belgrade”: SJ [103]. His Honour found that the overt acts carried out by the applicant were those set out in SJ [6] (summarised above). His Honour said of the applicant, at SJ [103]:

19. [26]

    The sentencing judge addressed the applicant’s submission as to the effect of the verdict of not guilty returned in respect of count 1, as follows, at SJ [104]:

20. [27]

    The sentencing judge assessed the objective seriousness of the applicant’s offending as “very serious” and said, at SJ [105]:

21. [28]

    His Honour found that the evidence did not establish that the applicant was “one of the three principals in the syndicate”: SJ [106].

22. [29]

    At SJ [108], his Honour noted that the maximum penalty for the offences was life and that this was a relevant “guidepost”.

23. [30]

    Of the loss or damage suffered, the sentencing judge said that there was “the potential for enormous harm to the community in the event that the purpose of the conspiratorial agreement had been successfully executed”: SJ [109]. His Honour said further:

24. [31]

    The sentencing judge addressed s 16A(2)(f) and (g) of the Crimes Act 1914 (Cth) together. As his Honour’s reasons with respect to these factors are the subject of proposed ground 2 of appeal, I propose to set them out in full:

25. [32]

    As to specific deterrence, the sentencing judge found that it was “important”: SJ [112].

26. [33]

    Of general deterrence (s 16A(2)(ja) of the Crimes Act), his Honour said at SJ [113]:

27. [34]

    Of the factor in s 16A(2)(m) (the character, antecedents, age, means and physical or mental condition of the offender), his Honour accepted that the applicant was 40 years old and married with a 7-year-old son: SJ [114]. His Honour also accepted that at the time of the offence the applicant was a director of a construction company in Dubai where he had been living since 2016, having previously run a successful construction company in Canberra. Of the applicant’s medical issues, his Honour found:

28. [35]

    The sentencing judge addressed the applicant’s history of drug-taking at SJ [115] as follows:

29. [36]

    His Honour also addressed the applicant’s medical issues as follows:

30. [37]

    His Honour took into account the onerous conditions of the applicant’s incarceration in Serbia and the poor hygiene which resulted in him developing serious infections for which he had to be hospitalised three times: SJ [118]. His Honour also took into account the effect of the COVID-19 pandemic on the prison population in New South Wales: SJ [119].

31. [38]

    His Honour found that the applicant’s presentation as a “model prisoner … augurs well for his successful rehabilitation back into the community upon his release and confirms the opinion of the author of the SAR that he is at a low risk of re-offending”: SJ [120]. His Honour also took into account the effect on the applicant’s family: SJ [121]-[122]. His Honour gave no weight to delay in sentencing, finding that it was the direct result of the applicant’s opposition to his extradition to Australia: SJ [123]. However, his Honour accepted that the applicant would suffer additional hardship in custody as a consequence of his physical and mental diagnoses as well as the COVID-19 pandemic: SJ [124].

32. [39]

    As to parity, the sentencing judge referred to Mr Arnold (as Mr Campbell had not yet been sentenced). His Honour said in part, at SJ [126]:

33. [40]

    At SJ [127], the sentencing judge said:

34. [41]

    The following passage, at SJ [129], is relied on in support of ground 3:

The grounds of appeal

1. [42]

   Where specific grounds of appeal are made out, it is preferable not to address manifest excess (because it becomes hypothetical as this Court must re-sentence in accordance with Kentwell: Ritchie v R [2023] NSWCCA 153 at [13]) or parity (since a parity ground presupposes that the sentence is otherwise correct: Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [251] (Howie J, Rothman J agreeing)). For these reasons, I propose to address only grounds 2, 3, 4 and 6.

2. [43]

   The applicant submitted that it was not open to his Honour to specify a blended discount of 10% for both the utilitarian value of the applicant’s plea and his contrition and that his error ought lead to the sentence being set aside and the Court re-sentencing the applicant.

3. [44]

   The Crown submitted that there was no error in the approach taken by the sentencing judge and that the ground had not been made out since it was open to a sentencing judge to include mitigating factors other than a discount for the utilitarian value of the plea, such as contrition, in a specified numerical discount.

4. [45]

   For the reasons which follow, I accept the applicant’s submissions and am satisfied that ground 2 has been made out. Indeed, it is an error which is so fundamental that I would have expected the Crown to concede it, as occurred in a similar case involving a NSW offence in Green (a pseudonym) v R [2025] NSWCCA 16 at [37].

5. [46]

   Section 16A(2) relevantly provides:

6. [47]

   In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian), the sentencing judge adopted the so-called “two-tier approach” of fixing a starting point for the sentence by reference to objective circumstances and then increasing or reducing it by reference to various subjective matters. This approach was found to be erroneous. The Court held that the process of “instinctive synthesis” was the correct approach.

7. [48]

   McHugh J explained the expressions “instinctive synthesis” and “two-tier process” in Markarian, at [51], as follows:

8. [49]

   At [74], McHugh J confirmed that the instinctive synthesis approach is not inconsistent with awarding a discount for some factor, such as a plea or assistance to authorities. Markarian has been consistently followed: see, for example, Hancock v R [2025] NSWCCA 213 (Hancock) at [39].

9. [50]

   In Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 (Xiao), this Court considered the effect of s 16A(2)(g) and its relationship with s 16A(2)(f). It held that, when sentencing, a court was entitled to take into account the utilitarian value of the plea, as well as its relevance to whether the offender had shown contrition: [277]-[278]. The Court also said that, while it was desirable that a sentencing judge specify the percentage discount to the sentence as a consequence of the utilitarian value of the plea, this was not required as a matter of law: [279]-[280].

10. [51]

    The effect of Markarian and Xiao is that, a judge sentencing an offender who has pleaded guilty to a Commonwealth offence has a choice whether:

    1. (1)

       to include the utilitarian value of the plea in the process of instinctive synthesis (as required by Markarian); or

    2. (2)

       determine the result of the process of instinctive synthesis (without taking into account the utilitarian value of the plea) and deduct from the resultant figure a percentage referable to the utilitarian value of the plea.

11. [52]

    As this Court said in Xiao, (2) is preferable because it informs the offender (and those who have been charged but not convicted) what discount has been applied for the utilitarian value of the plea. In Huang v R [2018] NSWCCA 70; (2018) 272 A Crim R 266, Bellew J said at [69] that the timing of the plea, to a large extent, determines the level of the utilitarian discount to be applied, citing R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160].

12. [53]

    While the choice between (1) and (2) is available to sentencing judges in those circumstances, there is no justification for including any factor other than the utilitarian value of the plea in the percentage discount, since such an approach is contrary to Markarian. As Johnson J explained in Bae v R [2020] NSWCCA 35 (Bae) at [57]:

13. [54]

    In Chuang, Chih Wen v R; Chen, Chun Hung v R [2020] NSWCCA 60, Basten JA said at [19]:

14. [55]

    To similar effect as Bae, this Court (Fullerton J, Wilson and Ierace JJ agreeing) said in Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191 (Betka) at [62]:

15. [56]

    The same point was reiterated in Giles-Adams v R; Preca v R [2023] NSWCCA 122 at [78] (Yehia J, Wright and Chen JJ agreeing):

16. [57]

    It is not to the point that a plea of guilty may have a utilitarian value as well as indicating contrition, which has the potential to produce some overlap. A specified discount may only be given for the utilitarian value of the plea. To include another factor, such as contrition in the assessment of the discount is erroneous.

17. [58]

    For these reasons, ground 2 has been made out with the consequence that this Court is obliged to re-sentence the applicant.

18. [59]

    The error alleged in ground 3 is an error of the kind identified in Markarian since it involves a two-tiered process of fixing a starting point (in this case, 25 years) and deducting the effect of other factors. The only deduction from a starting point which was permitted in the present case is the deduction for the utilitarian value of the applicant’s plea of guilty. However, the nominated starting point of 25 years, reduced by 10% for the utilitarian value of the plea (disregarding for the purposes of the calculation the contamination of that figure by the inclusion of contrition in its assessment), would give rise to a sentence of 22 years and 6 months, and not, as the sentencing judge found, 20 years. His Honour further reduced the term from 22 years and 6 months to 20 years, explaining that this reduction was “to take into account the significant medical difficulties that you have faced and will continue to face in custody, the onerous conditions of your incarceration following your arrest both in Serbia and given the impact of the COVID-19 pandemic in New South Wales since you arrived here”: SJ [129] (set out above).

19. [60]

    On the basis of Markarian, this ground has been made out and the Court is obliged to re-sentence the applicant. Once again, this is an obvious and fundamental error which the Crown ought properly to have conceded.

20. [61]

    This ground was based on the sentencing judge’s statement in SJ [110], extracted above, which had the effect of assessing the actual rather than the potential utilitarian value of the applicant’s plea of guilty. The applicant submitted that it was erroneous for the sentencing judge to take into account the circumstance that, because the trial for Mr Campbell continued in respect of count 2, “there was no substantial saving in terms of witnesses called at trial”: SJ [110].

21. [62]

    The Crown submitted that this did not constitute an error since the circumstances and course of the trial were relevant to the discount for the utilitarian value of the plea.

22. [63]

    I am satisfied that ground 4, as refined in submissions, has been made out. I consider that House v The King (1936) 55 CLR 499; [1936] HCA 40 error has been established. Mr Campbell’s decision to defend both charges was not relevant to an assessment of the utilitarian value of the applicant’s plea. Accordingly, the sentencing judge was in error in taking this into account.

23. [64]

    In Magro v R [2020] NSWCCA 25 (Magro), this Court (Gleeson JA, R A Hulme and Button JJ agreeing) at [46]-[65] considered the approach which ought be taken to the assessment of the utilitarian value of a plea which was not accepted by the Crown. It referred to the rationale for a discount on sentence in respect of an unrealised utilitarian value of a plea which is offered (unrealised, because the Crown went to trial on a more serious charge in respect of which the accused was acquitted). The Court in Magro emphasised the need to give an offender credit for the potential value of the plea offered, even if the potential was not realised, citing R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32] where the Court set out principles of general application, including the following:

24. [65]

    For similar reasons, the utilitarian value of the applicant’s plea should not depend on Mr Campbell’s forensic decision since this would be as arbitrary and unfair as to make the utilitarian value of an offer to plead guilty depend on whether the Crown accepted it or not. In Magro, this Court at [52] referred to Hidden J’s explanation in R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535 at [21]:

25. [66]

    It follows that error (in addition to the error established in ground 2) in the process of assessing the discount for the plea has been established. As the Court is required to re-sentence, the deduction for the utilitarian value of the plea will be addressed below.

26. [67]

    As the role played by the applicant needs to be addressed on re-sentence, it is convenient to address it in the course of that process, noting the applicant’s challenge to the sentencing judge’s assessment of his role.

27. [68]

    It was common ground that, following this Court’s decision in Hancock (which was heard by a 5-judge Bench constituted to address the relevant test to be applied to factual challenges in criminal sentence appeals), the applicable test was as stated in House v The King. The Court said:

Re-sentence

1. [69]

   The three principal matters in dispute which arise on re-sentencing are: the applicant’s role, generally, and when compared with that of Mr Campbell; the related question of how the principles of parity apply to the applicant and Mr Campbell; and whether a greater discount than 10% ought be applied.

2. [70]

   The utilitarian value of a plea of guilty is, as the authorities referred to above establish, largely to be determined by its timing. The applicant pleaded guilty to the possession offence on 8 May 2023, the first day of the trial (and successfully defended himself against the importation offence as the jury returned a verdict of not guilty in respect of that offence). His plea to the possession offence had a utilitarian value although it was diminished by its timing.

3. [71]

   The applicant submitted that the utilitarian value of his plea, when assessed by reference to its timing and his earlier offer, warranted a discount of 15%.

4. [72]

   While the applicant offered to plead guilty to the possession offence earlier, there was no acceptance by him, until the plea on the first day of the trial, of the amount of drugs involved, which was a key ingredient in his criminality. I do not consider that the discount for the applicant’s plea of guilty ought be greater than 10%.

5. [73]

   As contrition cannot not be taken into account in an assessment of the utilitarian value of the applicant’s plea of guilty, it is necessary to make allowance for it in the process of instinctive synthesis.

6. [74]

   The applicant contended that the sentencing judge was wrong to reject his submission that he was a minor player who was dispensable as a trouble shooter for the syndicate. Instead, his Honour found that he was a trusted person who was close to the principals (SJ [103]) but who had a less serious role than Mr Arnold’s (SJ [126]) and a more serious role than Mr Campbell. His Honour found Mr Campbell to be at the lowest level of the hierarchy in the syndicate and at greatest risk of detection.

7. [75]

   In accordance with Hancock, the question for this Court was whether it was open to the sentencing judge not to find that the applicant was a minor player who was dispensable as a trouble shooter for the syndicate. One of the difficulties with this submission is that an expression such as “minor player” is a relative one since it invites the question, “minor compared with whom?” In substance, the applicant submitted that he was, in effect, set up at the meeting at the Metropol Hotel by people who were senior to him in the hierarchy. So much may be accepted, and, indeed, was accepted by the sentencing judge, who found (SJ [6](14), extracted above) that the applicant was trying to obtain the return of the drugs on behalf of the syndicate. That there were obvious risks in this endeavour does not mean that he was more dispensable than others at his level or lower in the hierarchy of the syndicate. It is plain from the chat messages exchanged between the applicant and others in the syndicate, including “Gov”, that the applicant was trusted with money, drugs and with the task of obtaining a firearm. Although the period of the applicant’s involvement was relatively short (compared with Mr Arnold’s or Mr Campbell’s), he played a significant role in the conspiracy and occupied a position of trust.

8. [76]

   It is significant that the applicant did not challenge any of the underlying factual findings in SJ [6], in support of his submission that he was only a minor player who was dispensable. I am not persuaded that it was not open to his Honour to reject this submission.

9. [77]

   As referred to above, the sentencing judge sentenced Mr Campbell on 3 May 2024 after his Honour had sentenced the applicant on 19 April 2024. The sentencing judge imposed a sentence on Mr Campbell of 18 years imprisonment commencing on 16 January 2018 and expiring on 15 January 2036 with a non-parole period of 10 years and 6 months. Mr Campbell will first be eligible for parole on 15 July 2028.

10. [78]

    It was accepted that the sentence imposed on Mr Arnold was also relevant for parity purposes. He pleaded guilty to the importation offence and was sentenced by Culver DCJ on 20 February 2020 on a different matrix of facts, which included the fact that the applicant was senior to Mr Arnold.

11. [79]

    It is important to note that, as Mr Campbell had not been sentenced when the sentencing judge sentenced the applicant, Mr Campbell was not relevant for parity purposes to that sentencing exercise. However, the sentence which the sentencing judge imposed on the applicant was relevant when the sentencing judge was sentencing Mr Campbell. As their offending conduct was assessed on the same basis (the agreed facts and the evidence at the trial) it is appropriate to have regard, on re-sentence, to the sentencing judge’s findings as to Mr Campbell’s role. By contrast, parity between the applicant and Mr Arnold was to be assessed by reference to the findings of fact made by the sentencing judge as to Mr Arnold’s role, rather than those facts on the basis of which Mr Arnold was sentenced by Culver DCJ.

12. [80]

    The applicant’s criticism of the sentencing judge for not making a finding about parity with Mr Campbell at a time when Mr Campbell had not been sentenced is without foundation. Mr Campbell’s relative role could only be taken into account for the purposes of parity with respect to the applicant when Mr Campbell had been sentenced. As this Court is required to re-sentence, it must take into account Mr Campbell’s sentence and, to a lesser extent, Mr Arnold’s sentence, when imposing a sentence so as not to create a disparity between the applicant and these two co-offenders.

13. [81]

    The sentencing judge’s findings as to Mr Campbell’s overt acts in the reasons for Mr Campbell’s sentence (R v Campbell [2024] NSWDC 147) were as follows, at [3]:

14. [82]

    These findings were not challenged by the applicant and I accept them for the purposes of re-sentencing.

15. [83]

    The primary judge made findings when sentencing Mr Campbell about his role, which were not challenged and which I accept for the purposes of re-sentencing. His Honour found:

16. [84]

    The comparisons between the co-offenders (based on the facts as found by the sentencing judge) are set out in the table below. As I see no reason not to retain the sentencing judge’s ratio of 60% between the non-parole period and the total term, that figure is included in the table below.

17. [85]

    It is necessary, for the purposes of parity, that there be a significant difference between the starting points of the applicant’s sentence and that of Mr Arnold, as befits the disparity in their roles. Further, as I am not persuaded that any error has been shown in the sentencing judge’s assessment of the relative roles of Mr Campbell and the applicant, the applicant is to be sentenced on the basis that the seriousness of his offending and his role in the hierarchy is materially greater than that of Mr Campbell. This factor is not undermined by the circumstance that Mr Campbell travelled a greater distance for the conspiracy or that his participation in the conspiracy was over a significantly longer period.

18. [86]

    I have taken into account on re-sentencing the evidence adduced by the applicant in this Court which establishes that he is a model prisoner and has participated in several courses, including Health & Fitness and Community Services, and availed himself of such opportunities as are available to him in custody. His time in custody has been particularly difficult having regard to his medical issues and the distance from his family, who live in Newcastle.

19. [87]

    However, I am not persuaded that it would be appropriate to sentence the applicant for a period of less than 20 years’ imprisonment (after a reduction for the utilitarian discount for the plea). The applicant’s offending was, as the sentencing judge found, very serious; there were few mitigating factors; and the maximum penalty for the possession offence is life imprisonment. No lesser sentence is warranted in law.

20. [88]

    For these reasons, I consider that, although leave ought be granted, the applicant’s appeal ought be dismissed.

Proposed orders

1. [89]

   For the reasons given above, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [90]

   R A HULME AJ: I agree with Adamson JA.