R v MM; R v WK

1. [1]

   BATHURST CJ: The respondents, MM and WK, pleaded guilty to a number of offences which occurred during a period in which they were members of a criminal group known as the Brothers for Life (BFL) Blacktown Chapter. MM was sentenced to an aggregate sentence for the seven offences for which he was charged and pleaded guilty (eight other offences were taken into account on four Forms 1). The sentence comprised a non-parole period of 4 years commencing on 3 November 2013 and expiring on 2 November 2017 and a balance of term of 3 years expiring on 2 November 2020. The sentence was arrived at after allowing a discount of 55% for assistance to the authorities and the guilty pleas. The sentencing judge also found special circumstances and adjusted the ratio between the non-parole period and the total term to 57%.

2. [2]

   WK was sentenced to an aggregate sentence for the six offences for which he was charged and pleaded guilty (another offence being taken into account on a Form 1). The sentence comprised a non-parole period of 4 years commencing on 7 November 2013 and expiring on 6 November 2017, and a balance of term of 3 years expiring on 6 November 2020. The sentence was arrived at after allowing a discount of 60% for assistance to the authorities and the pleas of guilty. The sentencing judge found special circumstances and adjusted the ratio between the non-parole period and the total term to 57%.

3. [3]

   The following table extracted from the Crown submissions set out the offences, the maximum penalty, the standard non-parole period where applicable and the indicative sentences determined by the sentencing judge:

4. [4]

   The Crown has appealed against the sentences imposed on each of the respondents on the sole ground the sentences were manifestly inadequate.

5. [5]

   The facts surrounding each of the offences and those referred to in the Forms 1 were set out in an Agreed Statement of Facts which was summarised by the Crown and the sentencing judge in a manner which was not subject to criticism by the parties to the appeal. The summary of facts set out below is taken from this material. For convenience, I have set out in this section the sentencing judge’s assessment of the objective seriousness of each offence and the reasons he arrived at his conclusion on this issue.

MM

1. [6]

   MM was a member of the BFL Blacktown Chapter between 1 July 2013 and 7 November 2013, the day of his arrest. MM attended meetings where criminal activities, including drug trafficking, were discussed. MM knew BFL was a criminal group and his participation contributed to the occurrence of criminal activities. As a member of the group he was involved in a number of very serious shootings and home invasions.

2. [7]

   The sentencing judge recorded that MM was trusted by Farhad Qaumi (Qaumi) to collect weekly membership fees from each member of the group. His Honour recorded that MM was aware of the overall activities of the group and found that although he was not in the leadership group he had some responsibility and was more important than other members of the group who were described as foot soldiers.

3. [8]

   The sentencing judge described the offence as a serious example of an offence of this nature, noting that at the time of the offence MM was on conditional liberty (a bond) which he stated to be an aggravating factor.

4. [9]

   The agreed facts for this count stated that the offenders, including MM, intended to steal guns, money and drugs from the occupants of the Eagle Vale house. Qaumi arranged for MM to summon BFL members to the Blacktown Clubhouse preparatory to the carrying out of this offence. Qaumi instructed the BFL members to tie the occupants up and shoot them if needed. An unregistered sawn-off “Mossberg” pump action shotgun was supplied by Qaumi to the BFL members for this purpose.

5. [10]

   The sentencing judge found there was organising and planning involved, including the co-offenders’ attempts to avoid detection by wearing gloves and disguising themselves by wearing their BFL jumpers inside out with the hoods of the jumpers over their heads. Only MM was permitted to carry a mobile phone.

6. [11]

   Nine persons, including the offender, attempted to break into the home. The sentencing judge described this as a serious aggravating factor.

7. [12]

   Three cars were driven to the house in question and the assailants attempted to enter the property by force. The front door was kicked with enough force to smash the lock. The assailants announced their presence by saying “It’s the BFL and we’re coming to get you”.

8. [13]

   One member of the Group, S, fired a number of rounds from the shotgun through a window. Another assailant took the gun on fleeing and discharged further shots towards the garage door. The sentencing judge stated it was plain that in firing the weapon there was a reckless disregard for anyone inside the house.

9. [14]

   The circumstance of aggravation was being armed with a dangerous weapon. The sentencing judge found the seriousness of the offence was increased by the fact the weapon was actually used.

10. [15]

    The sentencing judge also found the offence aggravated by the use of violence and that it was committed at the home of the victim. He pointed out the offence was committed for financial gain and that MM set up the initial meeting at Qaumi’s request. He used satellite navigation to direct the group to the site. The sentencing judge accepted, however, that the actual plan was not devised by MM.

11. [16]

    The sentencing judge also pointed to the fact that MM was subject to a bond at the time of the offence indicating that was a further aggravating factor.

12. [17]

    In the circumstances the sentencing judge described the offence as a serious offence of this kind. He also described the offence on the Form 1 of fire a firearm at a dwelling house in the course of organised crime as an extremely serious offence.

13. [18]

    The sentencing judge described the purpose of purchasing the firearm as a matter relevant to the seriousness of the offence.

14. [19]

    The sentencing judge described the weapon in question as a powerful military style semi-automatic firearm. He stated it was fully functioning with significant potential for harm. He said MM was well aware it was in working order as he observed Qaumi firing it before the purchase was completed. Further, the sentencing judge accepted the weapon was sold with ammunition.

15. [20]

    The sentencing judge also found that MM knew Qaumi intended to collect guns in case they needed them to fight a war with other gangs. He accepted that the offender knew the weapon would be used in contemplated criminal activities.

16. [21]

    The sentencing judge noted that MM did not actually conduct the purchase but was present and supporting Qaumi. He also noted that MM was of assistance in obtaining some of the money necessary to purchase the firearm. He noted that MM was on bail at the time the offence was committed, describing this as a further aggravating factor.

17. [22]

    The sentencing judge in dealing with this count took into account two matters on a Form 1, namely, demand property with menaces and use an unauthorised pistol.

18. [23]

    The incident in question arose as a result of an associate of the BFL, Witness E, indicating to Mumtaz Qaumi, one of Qaumi’s brothers, that he was having problems with a person, Christopher Muscat, concerning the sale of a Range Rover belonging to E’s father for a price of $50,000. Mumtaz Qaumi suggested to E he tell Mr Muscat to have the money ready and he would sell him the vehicle. Later on the same afternoon, E drove to the Blacktown Clubhouse and handed Qaumi a revolver which E said had been placed in his vehicle by a person unknown to him.

19. [24]

    Qaumi gave orders to MM, Jamil Qaumi (another brother), three other BFL members and E, to go to Mr Muscat’s house, shoot him in the legs, tie him up and get the money.

20. [25]

    At 8.30pm MM and the other BFL members travelled in two vehicles to Mr Muscat’s home. Jamil Qaumi directed the group to enter. E, MM and three other BFL members approached the back door. Witness E opened the unlocked back door and MM and the others entered the house.

21. [26]

    MM and the other three BFL members entered the bedroom where Mr Muscat was present with his dog “Barbie”. Witness E remained in the lounge. MM grabbed Mr Muscat who struggled and flailed his arms about.

22. [27]

    Another BFL member discharged four shots from the revolver towards the floor. The shots inflicted non-fatal injuries to the dog. Mr Muscat was told to shut up and calm down. Mr Muscat apparently told the gang members “I’ve got money buried in the backyard, take me there and I’ll get it for you”. Mr Muscat broke free and ran into neighbouring bushland. MM remained in the house.

23. [28]

    The sentencing judge accepted MM played an active role in the offence. He said the incident must have been confronting and terrifying to Mr Muscat. Although only the dog suffered injuries, it was a highly volatile and dangerous situation.

24. [29]

    The sentencing judge accepted that MM was not an active participant in the planning of the offence, although he played an active role in its commission. He noted that MM was on conditional liberty at the time of the offence, describing this as an aggravating factor.

25. [30]

    The genesis of this offence and the offences the subject of Counts 6 and 7 arose as a result of what loosely might be described as a gangland war between the Blacktown Chapter and the Bankstown Chapter of the BFL. The Bankstown Chapter was run by Mohammed “Hamoudie” Hamzy (Hamzy).

26. [31]

    In October 2013 a female associate of Qaumi, AC, warned Qaumi that Hamzy was planning to kill him. Qaumi instructed his group that they had to kill Hamzy. As a result, three members of the Blacktown Chapter of the BFL entered a garage where Hamzy was believed to be located and shot one man dead and injured another. Hamzy escaped.

27. [32]

    Several days later Qaumi learnt that the Bankstown Chapter believed that he, Qaumi, was involved in the shooting. Qaumi told his group they needed to strike first.

28. [33]

    On the evening of 3 November 2013 MM, WK and other gang members described as L, J and C, Mumtaz Qaumi and Jamil Qaumi, met in a park in Blacktown. Mumtaz Qaumi and Jamil Qaumi told the group that the Bankstown BFL was coming for them and they needed to take them out. Mumtaz Qaumi said, “It is either them or us”. The plan was to kill Odisho, a member of the Bankstown BFL.

29. [34]

    Following a failed attempt to locate a car to steal, the Quamis instructed C to use his own car for the purpose of the offence. The Qaumi brothers took the others for a reconnaissance of the target’s premises and C, WK and MM were again told to kill Odisho.

30. [35]

    C drove himself, MM and WK to the Winston Hills’ street where Odisho resided. WK was armed with a shotgun, MM with a pistol. Witness C stopped the vehicle four houses from the Odisho residence. The target and his mother were inside in the lounge room.

31. [36]

    When the offenders reached the premises Odisho called out, “Who’s there?”. One of the offenders called out, “Ahmed”. The sentencing judge concluded that this was to entice Odisho to the front porch so that he could be shot.

32. [37]

    MM and WK began firing at the house. Crime scene analysis revealed that WK had fired four shots from the shotgun and MM three shots from the pistol. Mr Odisho sustained a gunshot wound to his left elbow which fractured the bone, two wounds to his left thigh and one wound to the back of his left leg.

33. [38]

    The sentencing judge found the offence was aggravated because it occurred at the home of the victim whilst one of the weapons used was a prohibited weapon.

34. [39]

    The sentencing judge concluded that the offender may not have been a totally willing participant. His Honour referred to the agreed facts which recorded Jamil Qaumi saying to MM, “If it’s not him, it’s you”, and that the offender took this to mean that if he did not shoot Odisho, Jamil Qaumi would kill him.

35. [40]

    The sentencing judge concluded that the Qaumis were seeking to rule their branch of the BFL in a strongarm way and to some extent the free will of MM was overborne.

36. [41]

    The sentencing judge noted the offence was committed in company, at the home of the victim and involved a grave risk of death to another person and occurred whilst MM was on conditional liberty. His Honour described the offence as a serious example of an offence of this nature.

37. [42]

    On the afternoon of 3 November 2013 Qaumi and Jamil Qaumi met with MM, WK and Mohammed Kalal and told them that they were going to take down Masood Zakaria. After the discussion Qaumi pulled WK offside and said, “You better get Masood out of the house”. WK said he did not want to do it and was told by Qaumi, “If you don’t get Masood, one of you are going to get shot. I’m going to shoot whoever doesn’t get him”. Jamil Qaumi told the group, “We have to take down Masood. If Masood’s not there get Dawood”. Dawood was the older brother of Masood Zakaria and an associate of the Bankstown Chapter of the BFL.

38. [43]

    C was instructed to drive the vehicle to the shooting. All persons left their mobile phones at L’s home and drove to the Zakaria residence. Kalal was armed with a shotgun and MM with a revolver.

39. [44]

    WK knocked on the door of the residence which was opened by Omar Zakaria, the father of Masood and Dawood. WK asked to speak with Masood while MM and Kalal hid towards the side of the door out of view.

40. [45]

    Masood Zakaria came to the door and spoke with WK. Omar Zakaria saw Kalal standing to the side of the door holding a shotgun and grabbed Masood, pulling him inside and slamming the door shut. WK moved backwards and away from the door. Kalal moved to the front of the door and fired four shots from the shotgun through the door.

41. [46]

    As this was happening, Hannah Zakaria who was 14 at the time, walked from the bathroom into the hall and was hit by a number of the shots. She received numerous pellet injuries to her kidney, throat, liver, spine and lungs, spending five weeks in hospital recovering from her injuries and the high level of lead in her body.

42. [47]

    The sentencing judge noted that MM conceded a significant degree of objective seriousness in the offence. He noted it was also conceded that the extent of the injuries to Hannah Zakaria was relevant to an assessment of the overall objective seriousness of the offence.

43. [48]

    The sentencing judge pointed out that MM and Kalal were armed and that shots were fired into a residential home when it was likely that people would be home. He pointed to the fact that the shooting occurred in a residential street and there was a danger to the public as well as to those in the premises. He pointed out that MM was on conditional liberty at the time of the offence and that it was part of organised criminal activity.

44. [49]

    The trial judge noted that MM did not fire any shots and that he was present when Qaumi threatened to shoot people who did not participate. However, he said that although Qaumi was a dominant and threatening presence, MM continued to participate. He accepted that to some extent MM’s will was overborne but stated it was a serious example of an offence of this type.

45. [50]

    On the afternoon of Wednesday 6 November 2013, Jamil Qaumi directed MM to hire a rental motor vehicle which he did with the assistance of C.

46. [51]

    On the same day MM and WK attended a meeting with AC, Mumtaz Qaumi and Jamil Qaumi at Harris Park. AC and Mumtaz Qaumi discussed a male named “Abs” and said, “He’s dead”. Abs was a man named Abdul Abu-Mahmoud who was believed by the members of the Blacktown BFL to have links to a real estate agent and able to find out the Blacktown BFL members’ addresses and provide them to the Bankstown BFL, enabling retaliatory attacks against members of the Blacktown BFL.

47. [52]

    The group travelled to Bankstown and conducted a reconnaissance of the location for the intended shooting. Mumtaz Qaumi and AC said, “Youse [sic] are gonna shoot that guy tonight”. MM and WK were given directions to obtain firearms and were supplied by a man named Rokhzayi with a .38 calibre revolver and a shortened pump action 12 gauge shotgun. At 11.15pm the group conducted a final reconnaissance of the site of the proposed shooting.

48. [53]

    At about 12.15am on 7 November 2013, Abdul Abu-Mahmoud, Khalil Khalil and Hassan Soueid were seated in a blue BMW sedan parked outside the Chokolatta Café at West Terrace Bankstown. Mr Abu-Mahmoud was in the front passenger seat, Mr Khalil in the driver’s seat and Mr Soueid in the middle of the rear seat.

49. [54]

    MM drove the hired vehicle behind the victim’s vehicle, blocking it from exiting. Kalal was in possession of the revolver and WK the shotgun. Kalal and WK exited the vehicle. WK ran to the driver’s side of the vehicle while Kalal ran to the passenger side.

50. [55]

    WK fired a number of shots from the shotgun into the driver’s side of the vehicle. They hit numerous areas of the driver’s side, including the driver’s seat headrest which was completely destroyed. Mr Khalil leant down in the vehicle to protect himself. Mr Abu-Mahmoud suffered gunshot wounds to the upper body and head, whilst Mr Soueid suffered gunshot wounds to his back and head. Mr Khalil was not shot.

51. [56]

    Mr Kalal fired a number of shots from the revolver into the passenger side of the vehicle where Mr Abu-Mahmoud was sitting.

52. [57]

    After discharging their ammunition, WK and Kalal ran to the vehicle and MM drove from the scene.

53. [58]

    The sentencing judge noted that the Form 1 offences of discharging a firearm with intent to cause grievous bodily harm related to Mr Soueid and Mr Khalil, whilst the substantive charge related to Mr Abu-Mahmoud.

54. [59]

    The sentencing judge noted that MM agreed that the matter had a significant degree of objective seriousness. He noted that MM participated in the planning and helped arrange the hiring of the vehicle. He also organised access to the firearms. The sentencing judge noted that although MM had the role of driver and not a shooting role, he was integral to the planning, organisation and carrying out of the offence.

55. [60]

    The sentencing judge noted that in addition to driving the car, MM blocked the exit of the victim’s vehicle allowing the co-offenders to fire their weapons into it. He noted that MM knew his co-offender was armed with a pump-action shotgun, a similar weapon to that used in the shooting of Mr Odisho. He accepted that MM therefore knew of the weapon’s capabilities.

56. [61]

    The sentencing judge accepted that the offence was committed in company and without regard to public safety. He accepted it involved a grave risk of death and occurred whilst MM was on conditional liberty.

57. [62]

    The sentencing judge concluded that the offence was a serious example of an offence of the kind in question. He stated that all the Form 1 charges were serious and that in accepting they be taken into account, he was mindful they increased the need for retribution and that greater weight be given to personal deterrence.

WK

1. [63]

   The sentencing judge found that it was clear that WK attended meetings where criminal activity was discussed and he knew that targeted shootings were undertaken by BFL.

2. [64]

   The sentencing judge accepted that WK was a foot soldier for the group. He described the offence as quite a serious example of an offence of this nature.

3. [65]

   This count related to the same incident as Count 5 of the charge against MM. I have set out the facts at [30]-[37] above. In dealing with this count the sentencing judge repeated that it was a matter of real seriousness having regard to the motive, namely, to take out a member of a rival gang.

4. [66]

   The sentencing judge accepted that WK was a foot soldier. He pointed out that WK knew that his co-offender MM was armed and that WK fired four shots from his weapon without regard for public safety using a prohibited firearm.

5. [67]

   The sentencing judge noted the submission that WK believed he was operating under a level of duress. His Honour accepted WK was subject to some duress, although he stated that not too much weight could be given to this because WK had voluntarily joined BFL, knew of its nature and activities and did not leave the group. However, he stated it did provide a degree of mitigation.

6. [68]

   The primary judge also accepted that the fact that WK was subject to Children’s Court control orders at the time of the offence was an aggravating factor.

7. [69]

   This count arose from the same incident as Count 6 of the charges against MM. I have set out the facts at [42]-[49] above.

8. [70]

   The sentencing judge accepted the submission that WK played an active role by luring the victim to the front of the house. He concluded, unsurprisingly, that the offence was a serious example of an offence of this type.

9. [71]

   The sentencing judge referred to the agreed facts in which it was recorded that WK stated he did not want to do it and Qaumi said, “You will do it”, “It’s either them or us” and went on, “If you don’t get Masood one of you are [sic] going to get shot. I am going to shoot whoever does not get them”.

10. [72]

    The sentencing judge accepted that to some extent WK’s ability to exercise free will was overborne by the violent and threatening nature of those above him in the BFL hierarchy.

11. [73]

    The three charges relate to the shootings outside the Chokolatta Café on 7 November 2013. I have set out the facts at [50]-[57] above. The three victims were Mr Abu-Mahmoud, Mr Souied, each of whom was injured, whilst Mr Khalil escaped injury.

12. [74]

    The sentencing judge found that the shotgun used by WK was the same shotgun used in the shooting of Mr Odisho. He concluded that as WK was involved in that shooting, he was aware of the weapon’s capabilities and that it was a prohibited firearm. He stated that this aggravated the offence.

13. [75]

    The sentencing judge also referred to the fact that attempts were made to use coded conversations in securing the firearm and to the obtaining of a screwdriver to put a different numberplate on a hire car to help avoid detection. He accepted that the offences were committed in company and without regard to public safety. He also noted that WK was on conditional liberty being subject to Children’s Court control orders.

14. [76]

    The sentencing judge repeated that for both offenders, instructions were being given or relayed by Qaumi through his brothers and they were threatening, violent and dominating and were prepared to use violence to enforce discipline. However, he pointed out that both offenders continued to take part in BFL activities over a number of months.

MM’s subjective case

1. [77]

   MM was born on 16 October 1991 and thus was 22 or 23 years of age at the time of the offences in question.

2. [78]

   At the sentencing hearing MM relied on a psychologist’s report of Ms Anna Robilliard, dated 13 November 2015. MM told Ms Robilliard that his mother used to have fits of anger and break everything. He said she attempted suicide twice when their family resided in Tehran and that the family suffered external pressures for being of the Baha’i faith, which was declared illegal in Iran. The respondent told Ms Robilliard that the family home was targeted and he was badly burnt on one occasion and sexually molested on another. He said the family fled to Turkey when he was aged 10 or 11 years and came to Australia when he was 14.

3. [79]

   MM reported being expelled from school in mid-2007 when he was in Year 9. He commenced using drugs and going to strip clubs with his older brother whom he idolised. He worked on and off with his brother painting at this time. He said he was last engaged in paid employment in 2011.

4. [80]

   Ms Robilliard opined that his attachment to his brother was integral to his involvement with BFL. His brother G, who was imprisoned in August 2013, was prominent within BFL. He said he would have liked to leave BFL but his request was denied. He stated that his eldest brother tried to assist him in this regard but was bashed as was MM.

5. [81]

   MM reported that he drank alcohol from age 8 or 9 years and was introduced to cannabis after his arrival in Australia. He had used cocaine, opium and OxyContin. He said he stopped using drugs when he joined BFL but relapsed and over the three months leading up to his arrest was using drugs daily. He described himself as feeling deeply emotionally and psychologically disturbed at the time.

6. [82]

   Ms Robilliard described MM as expressing apparently sincere regret and remorse over his involvement in the offending. His intelligence was assessed to be in the soundly average range with weaker verbal skills compared to his non-verbal ability. She said that depression/dependant attitudes were prominent in personality testing.

7. [83]

   The sentencing judge referred to MM’s criminal antecedents noting they commenced with an assault occasioning actual bodily harm in 2010 for which he was on a bond at the time of the offence. He noted MM had a prior Children’s Court conviction but said that due to the lapse of time since that offence that was of no moment.

WK’s subjective case

1. [84]

   WK was born on 6 June 1995. He was thus 18 years of age at the time of the offences in question. At the hearing reliance was placed on a psychological report of Ms Robilliard dated 15 October 2014 and a psychological report of Ms Amanda White and Dr Susan Pullman dated 27 February 2015.

2. [85]

   Ms Robilliard commented that WK presented as hyperactive with great difficulty focusing. She said WK appeared to lack the ability to focus and seemed both inattentive and physically restless. He did not appear to be unduly anxious or depressed.

3. [86]

   WK reported to Ms Robilliard that he came to Australia in 2006 from Kabul. He said his parents had two more children after they arrived but they both died. He said everything collapsed at that time.

4. [87]

   WK told Ms Robilliard that he left home aged 15 and consumed so much alcohol he almost died. He commenced using cannabis in Year 8, saying he was depressed at the time and it made him feel good. At that time he stopped attending school.

5. [88]

   WK reported his mood to be up and down. He reported using ice on a regular basis from the age of 16. His IQ was assessed as being between 59 and 72, a range numerically applicable to a diagnosis of development disability. He was assessed to be within the lower extreme range of intelligence with an IQ in the low 1% of his age cohort.

6. [89]

   Ms Robilliard opined that the respondent did not fully understand the seriousness of his legal situation or its possible consequences. She commented he appeared naïve and immature for his age.

7. [90]

   Ms White and Dr Pullman prepared a forensic neuropsychological report. WK was assessed over four hours, his level of engagement being said to vary depending on his interest in the test.

8. [91]

   He reported stealing things from age 12 and having constant arguments with his parents.

9. [92]

   Prior to his arrest WK was living in a youth hostel with no regular contact with his family. He was in receipt of a Centrelink youth allowance.

10. [93]

    WK reported feeling happier on anti-depressant medication. He said his memory was not great and had worsened since using ice. WK said he joined BFL in August 2013 based on the belief they were a family who helped each other out and provided each other with protection and security. He denied any intention of violence or prior experience with guns.

11. [94]

    WK reported being fearful of the leader but being unable to see a way out. He said he deliberately aimed at objects around the victims and not at the victims specifically. He stated he had no intention to kill anybody and he was forced to engage in the activities concerned. He expressed regret for his actions and sympathy for the victims.

12. [95]

    WK’s overall intellectual ability was assessed as falling within the extremely low range. His working memory was low and significantly and unusually below his processing speed. His reading ability and listening comprehension were assessed as being extremely low. This was consistent with his history of repeated learning difficulties, his low academic attainment and low intelligence. His conceptual reasoning was said to be his strength and within normal range.

13. [96]

    The results suggested a degree of intellectual disability. It was suggested WK would require a high level of monitoring and supervision in the medium to long term and would require assistance with life skills, building pro-social relationships and behaviour as well as drug and alcohol education and counselling.

14. [97]

    The sentencing judge describe WK’s criminal antecedents as unenviable. He recorded they commenced in the Children’s Court in 2011 with larceny, thereafter there were charges of affray, failure to appear, possess prohibited drugs, failure to appear again, reckless wounding, robbery in company and several other minor offences. His Honour described the record as one which disentitled WK to leniency.

Sentencing judgment

1. [98]

   The sentencing judge summarised the facts and subjective circumstances of the offenders. He described each of the offences as serious examples of offences of their kind.

2. [99]

   In relation to MM, the sentencing judge noted that MM gave evidence on sentence and stated the history given by him to Ms Robilliard was true as were the statements he made to the police. He noted that MM told Ms Robilliard that he was having difficulty sleeping but refused drugs because he did not want to become dependent. He noted MM told Ms Robilliard that he had been traumatized by his brother being bashed prior to MM going into custody and also shot in the arm and leg after he (MM) went into custody.

3. [100]

   So far as MM’s drug use was concerned, the sentencing judge noted that his Corrective Services’ Record showed he failed a prescribed urine test on 7 June 2014 and had 42 days of contact visits denied for a possession of drug charge at about the same time. The sentencing judge noted that some considerable time had elapsed in regard to documented drug use.

4. [101]

   The sentencing judge stated he was prepared to accept that MM understood to a certain extent the full effect his serious crimes had had on many people and he was therefore, to that extent, remorseful.

5. [102]

   His Honour noted that MM had been in custody in the Special Protection Centre at Long Bay which involved him not experiencing the normal conditions for run-of-the-mill inmates. He noted MM had experienced long periods of segregation and being locked in his cell. There was no ability to access certain courses or undertake work. He also noted that visitors were limited and access to phone calls was a problem.

6. [103]

   The sentencing judge noted that despite this MM continued to do what courses he could, noted that he had completed courses in hygienic practices for food handling, a first aid course, a cooking course and art lessons.

7. [104]

   His Honour allowed a 25% discount for the utilitarian value of MM’s plea of guilty. He also noted the assistance given by MM to the authorities which he described as quite exceptional. His Honour stated that the evidence showed the information was highly valuable, reliable and truthful. His Honour gave a combined discount of 55% for the plea and the assistance to authorities. It was not contended he erred in doing so.

8. [105]

   The sentencing judge stated that the prospects of MM’s rehabilitation and not reoffending would depend on his attitude whilst in custody and then on parole. The sentencing judge noted that he was still a relatively young man and rehabilitation remained important.

9. [106]

   The sentencing judge noted that WK did not give evidence but relied on the two psychologists’ reports to which I have referred earlier and a further report of 2 August 2014 from Chief Psychologist Berindah Aicken of Justice Corrective Services. As a result of the latter report his Honour accepted that appropriate tests revealed that WK was functioning in the extremely low level of intellectual disability. He also noted that there was no difference between his verbal or non-verbal functioning. The sentencing judge concluded that as the Crown did not take issue with the reports, he was prepared to accept them and they gave an understanding as to why WK did not give evidence.

10. [107]

    The sentencing judge summarised WK’s history as disclosed in the psychologists’ reports to which I have referred. He noted that nothing in WK’s clinical presentation or history indicated signs of mental illness. However, he considered his mental condition was a factor relevant to moral culpability. However, in that context his Honour stated that as his criminal conduct extended over a number of months and a number of serious matters, not too much weight could be given to this aspect. He pointed out that it was clear that WK knew he was taking part in serious criminal activities.

11. [108]

    His Honour took into account the submission made on WK’s behalf that the offences took place over a confined period and included a measure of duress and particular vulnerability giving his age and mental condition. He also took into account WK’s willingness to disassociate himself from his peers which it was submitted pointed to rehabilitation and not reoffending. However, he described WK as someone who could easily reoffend unless he accepted a high level of supervision and monitoring.

12. [109]

    The sentencing judge accepted that although WK was an adult at law at the time of the offence, he was immature. However, his Honour did not find it a significant contributing factor to the commission of the offences. He pointed out that WK voluntarily joined the group and did not make any serious attempt to leave. However, he stated WK was still very young and issues such as rehabilitation and attempting to address his learning and intellectual problems remained important.

13. [110]

    The sentencing judge allowed a discount of 60% for the utilitarian value of the pleas and past and present assistance to the authorities. Again it was not disputed that this discount was appropriate.

14. [111]

    The sentencing judge acknowledged that each of the offenders had to be adequately punished and their conduct should be denounced. He said, however, it was always necessary to keep in mind the necessity to try and promote rehabilitation, given the relative youth of the offenders. His Honour said he had regard to general and specific deterrence for each offender and the maximum penalties for each offence.

15. [112]

    His Honour noted that the offences took place over a period of approximately three months and the crimes arose out of the offenders’ membership of the BFL. He stated that to accumulate the sentences to a greater degree than he proposed would result in a crushing sentence for each offender.

16. [113]

    In dealing with the non-parole period in the case of MM, the sentencing judge found that he would undoubtedly require considerable help on his release from custody and may need to change his identity and place of residence. However, the sentencing judge warned himself against allowing too great a reduction in the non-parole period as it could be seen that the end sentence was unreasonably disproportionate to the seriousness of the offence.

17. [114]

    The sentencing judge made similar observations in fixing the non-parole period for WK.

The appeal

1. [115]

   As I indicated the sole ground of the appeals was that the sentence was manifestly inadequate.

2. [116]

   The Crown submitted the sentences failed to adequately reflect the objective criminality of the overall offending.

3. [117]

   In support of this ground it was first submitted that the indicative sentences in respect of the s 33A(1)(a) offences (Counts 5, 6 and 7 in the case of MM and Counts 3, 4, 5 and 6 in the case of WK) failed to reflect the criminality involved and were manifestly inadequate, nor did the sentences reflect the different degrees of criminality involved in each offence.

4. [118]

   The Crown accepted that indicative sentences are not amenable to appeal, but pointed out it was established that an erroneous approach to the indicative sentences that would have been imposed may reveal error in the aggregate sentence arrived at.

5. [119]

   The Crown pointed out the maximum penalty for the offences under s 33(A)(1)(a) was 25 years and submitted the features of the offences made each one extremely serious and falling at the high end of the range of objective gravity. It was submitted the resulting injuries also increased their seriousness.

6. [120]

   The Crown acknowledged that the sentencing judge recognised that the offences carried a grave risk of death for the targets and those in the vicinity and that they were aggravated by multiple circumstances. However, the Crown criticised his Honour for describing them as either a “serious example of this type of offence” or having a “significant degree of objective seriousness”, submitting that underestimated the seriousness of the offences. At the hearing of the appeal the Crown acknowledged that it was not put expressly to the sentencing judge that the offences were at the top end of the range of objective gravity.

7. [121]

   The Crown submitted that a starting point of less than half the maximum penalty for the offences completely failed to acknowledge their gravity and submitted the judge did not give proper consideration to the guidepost given by the prescribed maximum penalty. The Crown also submitted that his Honour’s approach did not reflect what was described as the escalating criminality of the s 33A(1)(a) offences.

8. [122]

   The Crown acknowledged that limited assistance could be gained from statistics relating to sentences for offences under s 33A(1)(a). The statistics showed 95% of cases resulted in a full time custodial sentence, the term of the aggregate sentences ranging from 48 months to 20 years with a mid-point of 8 years. Of the offenders who pleaded guilty, the mid-point was 7 years.

9. [123]

   The Crown referred to three cases whilst not submitting a range could be gleaned from them to assist the Court.

10. [124]

    The first of these cases was Melbom v R [2011] NSWCCA 22, where the appellant pleaded guilty to nine offences, one of which was to discharge a firearm with the intention to cause grievous bodily harm. The offender received an aggregate sentence comprising a non-parole period of 16 years and a total term of 22 years. The indicative sentence for the offence of discharging a firearm with intent to cause grievous bodily harm was a non-parole period of 9 years and 6 months with a total term of 15 years.

11. [125]

    The facts surrounding this offence were as follows. On 23 May 2009 the applicant in the course of a domestic dispute with his then partner, assaulted her whilst holding a black firearm in his hand. She ran inside followed by her mother. The applicant discharged his firearm twice into her home. The victim, a resident next door, heard the noise. She walked to her front yard and tried to speak to the appellant and called upon him to stop. He ran 30 metres from the victim and levelled the firearm and shot one round from it in the victim’s direction. She was struck on her lower right leg which had to be amputated.

12. [126]

    The offending was said to be extremely serious involving a very high level of culpability having regard to the extremely dangerous nature of the appellant’s conduct in the use of a loaded firearm. It was said by the sentencing judge that the offence was committed in the vicinity of members of the public and was aggravated by the fact that the appellant was on parole and in possession of a prohibited weapon at the time of the offence. The offence was further aggravated by the substantial injury suffered by the victim.

13. [127]

    The appellant was aged 29 years at the time of sentence. He had never been sentenced in the District Court. He was said to suffer from behavioural disturbances and drug abuse but expressed what appeared to be genuine remorse to various persons.

14. [128]

    The sentence was not considered manifestly excessive.

15. [129]

    The second case was R v Tuala [2015] NSWCCA 8. The respondent was convicted by a jury of three counts of discharging a firearm with intent to cause grievous bodily harm. He also pleaded guilty to an offence of possession of a prohibited firearm and possession of an unregistered firearm. On each of the three shooting offences the respondent was sentenced to 8 years imprisonment with a non-parole period of 4 years and 3 months. Each sentence was accumulated by 2 months.

16. [130]

    The circumstances surrounding the offence were that the victim became indebted to a sub-contractor. He was in financial difficulties and was unable to repay the debt. The respondent became involved in a campaign to harass the victim and demand payment for the debt. On 21 March 2012 an arrangement was made between the victim and the respondent to meet regarding the monies owed. The respondent told the victim he had had enough time to pay and produced a firearm. He shot the victim in the arm and fired towards his legs. He fired a third short hitting the victim in the right inner thigh.

17. [131]

    The sentencing judge considered the offences very serious and that they disclosed criminality of a very high order. The respondent was aged 35 years at the time of the offending with a modest criminal record. He was considered otherwise to be of good character. The sentencing judge found special circumstances.

18. [132]

    An appeal from this sentence was dismissed.

19. [133]

    The third case referred to was R v Rae [2013] NSWCCA 9. The respondent in that case pleaded guilty to four offences, aggravated break and enter, discharge firearm with intent to cause grievous bodily harm, possession of a prohibited firearm and possession of ammunition. The sentencing judge imposed an aggregate sentence of 5 years and 7 months with a non-parole period of 4 years. The indicative sentence for the offence of discharging a firearm with intent to cause grievous bodily harm was 5 years and 7 months.

20. [134]

    In this case the respondent and the victim were known to each other. There was some previous animosity between them. They came across each other by chance on 16 July 2010. The respondent forced the victim to stop his truck and they both got out of their vehicles. A confrontation developed. The respondent produced a pistol and pointed it at the victim and said, “I’ll fucking kill you”. The victim turned to run, the respondent discharged the pistol and hit the victim from behind in the area of his left thigh.

21. [135]

    The offending was said to demonstrate very substantial objective criminality. The respondent had pleaded guilty and was entitled to a 25% discount. He was not found to be remorseful. His criminal record was described as not unblemished with a flavour of threats and violence. The respondent’s parents both committed suicide when he was an adolescent and a young adult. He commenced drug use following the death of his mother in 2008.

22. [136]

    On appeal, the Court found that the indicative sentence for the offence of discharging a firearm with intent to cause grievous bodily harm (7 and a half years prior to the discount for the plea) was remarkably lenient but was not considered to be manifestly inadequate. However, the appeal against the aggregate sentence was allowed and an aggregate head sentence of imprisonment of 7 years and 7 months with a non-parole period of 5 years and 5 months was imposed.

23. [137]

    A review of these cases shows that the Crown was correct in acknowledging that they provide very little assistance.

24. [138]

    The Crown also pointed out that there was minimal accumulation in respect of each offence and submitted a far greater degree of accumulation was necessary to recognise the separate criminality of each offence and the separate harm to each victim.

25. [139]

    The Crown submitted that the sentences were an affront to the administration of justice.

26. [140]

    At the hearing the Crown stated that neither the finding of special circumstances nor the adjustment of the non-parole ratio which was made were contested.

27. [141]

    In relation to the residual discretion, the Crown in addition to its submission that the sentences were an affront to the administration of justice, submitted their imposition was not caused or perpetuated by a representative of the Crown and that there had been no delay in the institution of the Crown appeal. The Crown further submitted that the respondents were at an early stage of their post-sentencing regime, so concerns about interference with rehabilitation diminish once it is accepted that any sentence imposed on the respondent will involve a substantial parole period during which supervision and treatment can occur.

28. [142]

    MM submitted that the s 33A(1)(a) offences, although objectively serious, did not fall into the top of the range of objective gravity. He submitted that this was for a number of reasons:

29. [143]

    MM pointed out that s 21A(3)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that duress is a mitigating factor on sentence. He pointed to Ms Robilliard’s report and to his evidence that after he had spoken to his brother about leaving the gang,

30. [144]

    MM also referred to evidence that he was bashed as well. He referred to his statement to Ms Robilliard that he continued to co-operate with the BFL because he was afraid his brother or other members of the family would be killed or injured if he did not do so.

31. [145]

    MM submitted that the duress he experienced mitigated his moral culpability. He submitted that the removal of this duress reduced the need for specific deterrence.

32. [146]

    MM also pointed to a number of features which operated as mitigating circumstances at sentence. They were his youth, his background of childhood hardship, his limited criminal history, his remorse and his prospects of rehabilitation.

33. [147]

    In relation to accumulation MM submitted an important factor was his youth and the concern that a substantially accumulated sentence would destroy his prospects for rehabilitation and reform. He submitted that the sentencing judge’s approach was consistent with the view that when sentencing a relatively youthful offender, deterrence may sometimes be given less weight than the need to foster the offender’s rehabilitation.

34. [148]

    At the hearing senior counsel for MM pointed to the fact that the high level of assistance he provided to authorities showed strong prospects of rehabilitation.

35. [149]

    Senior counsel for MM tendered a sealed document which he indicated showed MM not only complied with his undertaking to provide assistance but went further than he was required to do so. He submitted this was an important factor in considering whether or not the residual discretion should be exercised.

36. [150]

    WK referred to the sentencing by Hamill J of Witness L who was said to be an associated offender. L was sentenced for murder for the death of Joseph Antoun. In addition, he was sentenced for two counts of unlawful wounding arising out of the incident which resulted in the death of Mahmoud Hamzy. Hamill J described the offence as falling comfortably within the mid-range of objective seriousness, if not a little above it. The offences occurred while L was on parole. Hamill J imposed indicative sentences of 12 years before a discount for a guilty plea for each offence.

37. [151]

    WK placed some reliance on the Judicial Commission’s statistics pointing to the fact that the mid-point for aggregate sentences involving guilty pleas was 7 years. He referred to the fact that in R v Rae supra a starting point of 7 and a half years before the discount, whilst regarded as remarkably lenient, was not said to be manifestly inadequate.

38. [152]

    WK pointed out in his submissions that he was characterised by the sentencing judge as a foot soldier. Further, he submitted his age at the time of the offences and sentence, his mental condition relative to his moral culpability and his immaturity mitigated the sentence.

39. [153]

    WK submitted accumulation and totality were essentially matters within the exercise of the sentencing judge’s discretion. He submitted that given the fact that the sentencing judge had regard to the role of the criminal group in assessing the seriousness of Counts 2 to 6, it was within his discretion to impose a sentence on Count 1 almost entirely concurrent with Counts 2 to 6.

40. [154]

    WK pointed out that Counts 4, 5 and 6 arose from the same incident outside the Chokolatta Café. He submitted that whilst some degree of accumulation was warranted, to a large extent the sentence for one of the three offences could comprehend and reflect the criminality of the other offences. He submitted that in the present case the degree of accumulation did not support a conclusion of manifest inadequacy.

41. [155]

    WK submitted that any appearance of manifest inadequacy came as a result of the discount for assistance. He said that he had given evidence of a high degree of importance consistent with his undertaking.

42. [156]

    In relation to the residual discretion, WK pointed out that he is three-quarters of the way through his non-parole period and has engaged where possible in courses for his rehabilitation. In an affidavit sworn by him on 24 August 2016, he affirmed that so far as he was aware he had not been in trouble during the period that he had been in custody. There was no evidence to suggest that this was incorrect and it did not appear to be challenged by the Crown.

Consideration

1. [157]

   In considering these appeals, there are a number of matters which should be noted at the outset. First, although the sentence on each offender was said to be manifestly inadequate, it was not contended the discounts allowed in each case for the plea and assistance to authorities were inappropriate. Nor was it contended that the sentencing judge erred in finding special circumstances or making the adjustment to the non-parole period which he in fact made in each case.

2. [158]

   In these circumstances, the task for this Court is to determine whether the sentence passed on each respondent was manifestly inadequate, notwithstanding a discount for assistance and early plea, and an adjustment to the non-parole period which was appropriate.

3. [159]

   It is well established that intervention on the ground of manifest inadequacy is not justified simply because the result arrived at is markedly different from sentences which have been imposed in other cases, but rather only where the difference is such that the appellate court concludes there must have been some error of principle: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. An appellate court cannot substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion differently: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15].

4. [160]

   The issue in the present case is whether the aggregate sentences imposed were manifestly inadequate. It is important to keep that in mind because the Crown, whilst acknowledging that proposition, tended to focus its submissions on the indicative sentences for the s 33A(1)(a) offences. It is correct but not necessarily the case, that an erroneous approach in the indicative sentences may well reveal error in the aggregate sentence but the materiality of any error in an indicative sentence to the overall aggregate sentence needs to be demonstrated: PD v R [2012] NSWCCA 242 at [44]; R v Rae supra at [33].

5. [161]

   With that background, it is necessary to deal with each respondent separately.

6. [162]

   The starting point for the head sentence in the case of MM was 15 years and 6 months. Indicative sentences for each of the s 33A offences before discount were 9 years in the case of Count 5, the Michael Odisho shooting and 10 years in the case of each of the Hannah Zakaria shooting and the Chokolatta Café shooting.

7. [163]

   I have set out the facts surrounding these offences above and they were offences of the most serious kind. Although the sentencing judge was criticised by the Crown for underestimating the seriousness of the offences, it seems to me that whilst not stating that they were at the top end of the range of objective gravity (a submission which was not made to him), the sentencing judge recognised their gravity (see [41], [47]-[49], [59]-[62] above).

8. [164]

   Nonetheless, the indicative sentences were undoubtedly lenient for offences of this nature which each carried a maximum penalty of 25 years. Further, it seems to me that where such offences involve gang warfare, they are ones in respect of which general and specific deterrence loom large. In addition, it is necessary to take into account that MM was on conditional liberty at the time the offences occurred and that in the case of the Odisho shooting a Form 1 offence of possessing an unauthorised firearm was attached, whilst in the case of the Chokolatta Café shooting, four further offences were attached on a Form 1 including two offences of discharging a firearm with intent to cause grievous bodily harm which related to the other two victims of the Chokolatta Café shooting, Mr Soueid and Mr Khalil.

9. [165]

   Against this, regard must be had to MM’s role in relation to each offence. It was accepted he was following orders from the Qaumi brothers and that he was not involved in planning the Odisho or Zakaria shootings, although he was involved in the planning of the Chokolatta Café attack. Further, although he was armed at the Zakaria shooting, he did not fire any shots at that shooting, nor did he do so at the Chokolatta Café shooting where his role was to drive the car and seal off an escape route for the victims.

10. [166]

    Further, the sentencing judge concluded that MM did act under some duress in his involvement in the offence, pointing both to the threats made by the Qaumi brothers that persons ordered to undertake the enterprises which led to the Odisho shooting and the Zakaria shooting would be killed if they did not participate (see [39] and [42] above) and that when he had tried to leave the gang before the incidents in question, he and his brother were bashed (see [80] and [143] above).

11. [167]

    In that context s 21A(3)(d) of the Crimes (Sentencing) Procedure Act 1999 (NSW) provides that acting under duress is a mitigating factor in determining the appropriate sentence for the offence.

12. [168]

    In considering the appropriate sentence it was necessary to take into account MM’s relative youth at the time of the offence and his deprived background, to which I have referred above. In the present case I do not think that MM’s relative youth is a matter of particular significance, having regard to the gravity of the offence and the circumstances in which it occurred: see KT v The Queen (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22]-[25]. More significant is MM’s deprived background to which I have referred at [78]-[81] above. In my opinion the extent of MM’s childhood deprivation does alter the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of rehabilitation, particularly in circumstances where, according to Ms Robilliard whose evidence the sentencing judge accepted, MM had expressed sincere regret and remorse for his actions: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [46].

13. [169]

    I have set out details of the cases which the Crown submitted may be of assistance to the Court (at [124]-[136] above). The Crown accepted they did not provide material from which a range of sentences could be adduced for cases of this nature. Further, in my view, the facts and subjective circumstances of the offenders were too remote from the circumstances of the present case to provide any real assistance.

14. [170]

    In all the circumstances the indicative sentences for the s 33A(1)(a) offences, although certainly lenient for offences of this gravity, were not manifestly inadequate having regard to the role MM played in their commission, the duress to which he was subjected and the subjective circumstances to which I have referred.

15. [171]

    No complaint was made in respect of the indicative sentences imposed on the other counts.

16. [172]

    In addition to submitting that it could be demonstrated that the aggregate sentence was manifestly inadequate from the inadequacy of the sentences on the s 33A(1)(a) offences, the Crown submitted that what it described as the minimal accumulation in respect to the indicative sentences in arriving at the aggregate sentence, was a further factor which led to the aggregate sentence being manifestly inadequate.

17. [173]

    As the Crown correctly acknowledged, the question of accumulation and the extent of accumulation of sentences is a discretionary matter for the sentencing judge, the discretion to be exercised in accordance with established principles: R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540 at [7]; Franklin v R [2013] NSWCCA 122 at [42]; LG v R [2012] NSWCCA 249.

18. [174]

    When regard is had to the indicative sentences imposed, it is correct to say that there is an extremely limited degree of accumulation particularly when the separate criminality involved in each offence is considered. Although the offences all arose out of MM’s involvement with the BFL, each offence, particularly the s 33A(1)(a) offences, involved separate criminality which on its face would justify a significantly greater degree of accumulation than that which occurred.

19. [175]

    However, it was necessary for the sentencing judge to take into account the principle of totality. As was pointed out in Postiglione v R (1997) 189 CLR 295 at 304, the totality principle serves to ensure the offender is not subject to a crushing sentence, not in keeping with his records and prospects. It involves an evaluation of the overall criminality involved: Postiglione supra at 308.

20. [176]

    The ultimate question which arises is whether a sentence of 15 years and 6 months before discounts which were said to be acceptable, was manifestly inadequate to reflect the totality of the criminality involved in MM’s conduct. The matters to which I have referred in dealing with the indicative sentences are equally applicable to this question. Although the aggregate sentence was undoubtedly lenient, I am not satisfied after taking the matters I referred to into account that it was manifestly inadequate.

21. [177]

    In these circumstances, the appeal against the sentence imposed on MM should be dismissed.

22. [178]

    WK was sentenced on different charges to MM but in respect of the same incidents.

23. [179]

    Thus he was sentenced on five counts of discharging a firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act, one of which related to the Odisho shooting, one related to the Hannah Zakaria shooting, whilst three related to the Chokolatta Café shooting reflecting the fact that there were three victims.

24. [180]

    Once again the offences were extremely serious. However, WK did not plan the shootings and like MM he was subject to duress from the Qaumi brothers. Unlike MM, he was one of the actual shooters at the Chokolatta Café shooting, firing a number of shots from the shotgun into the driver’s side of the vehicle.

25. [181]

    The aggregate sentence imposed on WK prior to the discount for the plea and assistance was 17 years and 6 months.

26. [182]

    I have set out WK’s subjective circumstances above (at [84]-[97]). He was 18 years at the time of the offence, came from a relatively deprived background and had a low level of intellectual disability.

27. [183]

    The Crown in its submissions drew no distinction between the respective positions of MM and WK. This is understandable as it is difficult to see how one of the sentences could be manifestly inadequate and the other not, notwithstanding the fact there were differences in the respondents’ subjective cases.

28. [184]

    In the circumstances, for the reasons I have given in respect of MM, I am of the view that the sentence imposed on WK whilst lenient, was not manifestly inadequate.

29. [185]

    In those circumstances, the Crown appeal against the sentence imposed on WK should be dismissed.

30. [186]

    ROTHMAN J: I have had the advantage of reading, in draft, the reasons for judgment of Bathurst CJ. I agree with those reasons and with the orders proposed.

31. [187]

    GARLING J: I agree with the orders proposed by the Chief Justice and with his reasons.