Hayward v R (Cth)

1. [1]

   McCALLUM JA: I agree with Johnson J.

2. [2]

   JOHNSON J: The Applicant, Ralf Hayward, applies for an extension of time to seek leave to appeal against sentence passed at the Parramatta District Court on 20 June 2016 with respect to offences of possessing and uttering counterfeit money contrary to the Crimes (Currency) Act 1981 (Cth) (“Currency Act”) and producing false documents contrary to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (“Anti-Money Laundering Act”).

3. [3]

   Following pleas of guilty, the Applicant was sentenced by his Honour Judge Sides QC on 20 June 2016 to a total effective sentence of imprisonment for 10 years and six months, comprising a non-parole period of seven years commencing on 8 January 2015 and expiring on 7 January 2022 with a balance of term of three years and six months expiring on 7 July 2025.

Ground of Appeal

1. [4]

   By Notice of Application for Leave to Appeal filed on 3 September 2020, the Applicant relies upon a single ground of appeal that, in determining the appropriate discount to reflect the value of the Applicant’s pleas of guilty in accordance with s.16A(2)(g) Crimes Act 1914 (Cth), the sentencing Judge did not have regard to the utilitarian value of the Applicant’s pleas of guilty.

2. [5]

   The Applicant requires an extension of time under s.10(1)(b) Criminal Appeal Act 1912 (NSW) to bring his application for leave to appeal against sentence. In this respect, the Applicant relies upon his affidavit affirmed 6 August 2020 together with the affidavit of Stephen Eccleshall, solicitor, affirmed 29 July 2020 and the affidavit of Suzanne Tezjan Knowles, solicitor, affirmed 1 September 2020.

3. [6]

   The explanation for the delay in bringing the application relates to the decision of this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 and the impact of that decision upon the Applicant’s sentence.

4. [7]

   The discretionary power to extend the time limit to bring an appeal to this Court is legislative recognition that the interests of justice may favour permitting an application for leave to appeal against sentence to be heard, notwithstanding that it was not brought within time. In determining what the interests of justice require, it is necessary to have regard to the prospects of success of the ground of appeal should the extension be granted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32]-[33], [44].

5. [8]

   On the application for an extension of time, the Crown noted that the decision in Xiao v R was handed down on 5 February 2018, but the Applicant did not make application to this Court until 1 September 2020, more than two years after that decision and over four years since the Applicant was sentenced in the District Court.

6. [9]

   By reference to the affidavit of Ms Knowles (at paragraph 7), the Crown also noted that the original advice from counsel given before Xiao v R was that a sentence appeal did not have reasonable prospects of success. The Crown submitted, in any event, that the appeal did not have sufficient prospects of success to warrant the extension of time being granted.

7. [10]

   It is appropriate to consider the merits of the proposed appeal for the purpose of determining whether it is in the interests of justice to grant an extension of time to the Applicant in this case.

The Applicant’s Offences

1. [11]

   The Applicant pleaded guilty to 39 offences committed in 2014 and 2015 which fell into the following categories:

2. [12]

   In addition, the Applicant requested the sentencing court to take into account 98 matters on a Schedule under s.16BA Crimes Act 1914 (Cth) which included:

3. [13]

   As noted earlier, the sentencing Judge imposed a total effective sentence of imprisonment for 10 years and six months with a single non-parole period of seven years fixed in accordance with s.19AB Crimes Act 1914 (Cth).

4. [14]

   The following table sets out the counts on the indictment, the offence descriptions and the sentence imposed on each count which gave rise to the total effective sentence:

5. [15]

   As will be observed, the sentencing Judge took into account the 98 matters on the Schedule under s.16BA Crimes Act 1914 (Cth) when sentencing the Applicant for the offence of uttering counterfeit money contained in Count 1.

6. [16]

   It was common ground that, on 24 June 2016, the Applicant came before the sentencing Judge to remedy an omission on 20 June 2016 whereby the sentences for Counts 2, 3 and 5 had not been announced. As noted in the table set out earlier in this judgment (at [14]), the Applicant was sentenced to nine months’ imprisonment on each of those counts.

Facts of Offences

1. [17]

   A detailed Statement of Facts was placed before the sentencing Judge which his Honour utilised to make findings of fact on sentence which were not disputed in this Court.

2. [18]

   His Honour made the following introductory findings before moving to Counts 1 to 13 and a number of the offences on the s.16BA Schedule committed in Western Australia between 26 September 2014 and early October 2014 (ROS2-5):

3. [19]

   His Honour made the following findings concerning offences committed in Victoria and South Australia between 21 and 29 October 2014 (ROS5-6):

4. [20]

   The sentencing Judge then summarised the Applicant’s offences committed in Victoria and New South Wales from 1 November 2014 until his arrest at Parramatta on 8 January 2015 (ROS6-8):

Approach to the Applicant’s Pleas of Guilty in the District Court

1. [21]

   Having regard to the ground of appeal, it is appropriate to note submissions made in the District Court with respect to the Applicant’s guilty pleas and the approach adopted by the sentencing Judge on this issue.

2. [22]

   Although the Applicant was arraigned on the 39 counts at the commencement of the sentencing hearing on 26 May 2016, to each of which he pleaded guilty, it was common ground that pleas of guilty had been at least indicated in the Local Court.

3. [23]

   In accordance with the law as it stood in May 2016, the Crown written submissions on sentence in the District Court noted that the Court must take into account the fact that the Applicant had pleaded guilty, but that in doing so, stated that the objective utilitarian value of the pleas was not a relevant consideration (AB130). It was submitted for the Crown that the guilty pleas were to be taken into account as a mitigating factor as they demonstrated a willingness to facilitate the course of justice, but that they must not be taken into account as a mitigating factor for their objective utilitarian value or on the basis that they saved the community the expense of a contested trial.

4. [24]

   In this respect, reference was made to a number of decisions including Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 at [11]-[14] and Tyler v R; Chalmers v R (2007) 173 A Crim R 458; [2007] NSWCCA 247 at [110]-[114]. The Crown written submission stated expressly that the approach to be applied was contrary to the position with respect to State offences in accordance with R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and the Crimes (Sentencing Procedure) Act 1999 (NSW).

5. [25]

   In the course of oral submissions, counsel for the Applicant submitted to the sentencing Judge (T13, 26 May 2016):

6. [26]

   Soon after, counsel for the Applicant submitted that “He’s pleaded guilty at the earliest opportunity, he is remorseful, …” (T14, 26 May 2016).

7. [27]

   The Crown made no oral submission with respect to the approach to be taken to the Applicant’s guilty pleas.

8. [28]

   When sentencing the Applicant on 20 June 2016, the sentencing Judge said with respect to the Applicant’s pleas of guilty (ROS2):

9. [29]

   When sentencing the Applicant, the sentencing Judge did not quantify a discount for his pleas of guilty, but this aspect was taken into account in the exercise of discretion as a mitigating factor on sentence.

Submissions Concerning the Ground of Appeal

1. [30]

   Ms Avenell SC, counsel for the Applicant, submitted that Xiao v R error had occurred in this case as the sentencing Judge had, consistently with the law as it then stood, not taken into account the utilitarian value of the Applicant’s pleas of guilty.

2. [31]

   It was submitted that there had not been an implicit recognition of the utilitarian value in the manner referred to by Simpson AJA and Rothman J in Weber v R [2020] NSWCCA 103 at [15]-[16] and [30]-[32] respectively. In this regard, it was submitted that the Crown submissions on sentence in the District Court had urged the opposite approach, whereby the utilitarian value was not to be taken into account. Further, it was submitted that the sentencing Judge said nothing concerning the utilitarian value of the Applicant’s pleas when sentencing him.

3. [32]

   It was submitted that the sentencing Judge’s approach to the pleas of guilty placed this aspect on the subjective side only and not as an objective factor to be taken into account on sentence.

4. [33]

   The Crown accepted that the sentencing Judge erred by failing to take into account the utilitarian value of the Applicant’s guilty pleas. It was submitted, however, that although the sentencing Judge did not specify a discount for the guilty pleas, it appeared likely that his Honour accepted the submission made by the Applicant’s counsel that he should have the benefit of a 25% discount.

5. [34]

   Further, whilst it was accepted that the sentencing Judge did not take into account the objective utilitarian value of the guilty pleas, the Crown submitted that it would have made no difference to the overall sentence that was imposed in this case.

6. [35]

   The Crown submitted that the position was similar to that in Xiao v R where the Court said at [369]:

7. [36]

   Although the Crown acknowledged that it cannot be stated with certainty that the sentencing Judge applied a discount of 25%, it was submitted that this was the likely position given the submission made for the Applicant that he should receive the “full weight” of the 25% discount, the Crown’s acceptance of the facts that gave rise to the early guilty pleas and the absence of any Crown submission opposing the defence submission that a 25% should be applied. It was submitted that there was nothing in the sentencing remarks that would suggest that his Honour took a different course.

8. [37]

   In this way, the Crown submitted that it was open to this Court to conclude that an appropriate quantified discount had been allowed in this case, although the sentencing Judge did not expressly ascribe it to the utilitarian value of the guilty pleas.

Decision Concerning Ground of Appeal

1. [38]

   In determining whether the ground of appeal has been made good, it is necessary to read fully and fairly his Honour’s sentencing remarks against the background of the submissions made in the District Court concerning the role of the Applicant’s guilty pleas on sentence.

2. [39]

   To construe his Honour’s words on this issue in the manner submitted by the Crown would distort the way in which the matter was argued and his Honour’s approach given the then settled law on this topic.

3. [40]

   The Crown written submission in the District Court had stated that the Court must have regard to the Applicant’s pleas of guilty as required by s.16A(2)(g) Crimes Act 1914 (Cth). The submission stated that the utilitarian value of the guilty pleas was not to be taken into account. The Crown noted that the Court could quantify a discount, but was not required to do so.

4. [41]

   The short defence submission on sentence in the District Court invited his Honour to apply a 25% discount for the Applicant’s early pleas of guilty. The Crown said nothing further on that topic.

5. [42]

   His Honour’s finding on this issue used words which were consistent with the Crown written submission which invoked the law as it stood in June 2016.

6. [43]

   I accept the submission for the Applicant that there was no implicit recognition in this case of the utilitarian value of the Applicant’s guilty pleas. The circumstances considered by Simpson AJA and Rothman J in Weber v R did not arise in this case.

7. [44]

   I do not think that the Crown is assisted by the passage in Xiao v R at [369] (see [35] above) in circumstances where the appropriate construction is that his Honour was accepting a Crown submission that the utilitarian value of the pleas was not to be taken into account.

8. [45]

   I am satisfied that error is demonstrated in that his Honour’s approach to the Applicant’s guilty pleas did not have regard to the utilitarian value of those pleas. In accordance with the law as it then stood, his Honour had regard to a range of subjective factors (including a measure of contrition).

9. [46]

   Since the decisions in Xiao v R and Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70, this Court has addressed the question of Xiao v R error in a number of decisions.

10. [47]

    In Bae v R [2020] NSWCCA 35, the Court said at [53]-[57]:

11. [48]

    What was said in Bae v R has been applied in subsequent decisions of this Court including Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73 at [60] and Betka v R [2020] NSWCCA 197 at [57]-[59].

12. [49]

    I am satisfied that error has been demonstrated so that it is appropriate for the Court to move to resentence the Applicant for the purpose of s.6(3) Criminal Appeal Act 1912 (NSW).

Resentencing the Applicant

1. [50]

   In exercising its function under s.6(3), the Court should take into account all relevant matters, including evidence (if any) of the Applicant’s progress towards rehabilitation in the period since the original sentence was passed: Kentwell v The Queen at [43]; Betts v The Queen (2016) 258 CLR 4520; [2016] HCA 25 at [2], [11].

2. [51]

   The Court exercises an independent sentencing discretion and is required to form its own view of the appropriate sentence rather than confining itself to the determination of whether the identified error infected the sentence imposed below. The Court has regard to the material that was before the sentencing Judge, the sentencing Judge’s unchallenged factual findings and any relevant evidence of the offender’s post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9].

3. [52]

   In addition to the evidence which was before the sentencing Judge, the Applicant relied in this Court on his affidavit affirmed 2 October 2020 and an affidavit of Ms Knowles affirmed 4 November 2020.

4. [53]

   For the purpose of resentencing the Applicant, it is appropriate to note a number of findings made by the sentencing Judge.

5. [54]

   His Honour addressed the Applicant’s subjective circumstances (ROS8-10):

6. [55]

   The sentencing Judge referred to the level of premeditation and planning involved in the Applicant’s offences (ROS10):

7. [56]

   The sentencing Judge referred to other subjective factors including the Applicant’s prior criminal history (ROS10-11):

8. [57]

   His Honour made further findings with respect to the gravity of the Applicant’s offences (ROS11-13):

9. [58]

   His Honour concluded with respect to the seriousness of the offences (ROS13):

10. [59]

    The sentencing Judge noted the need for weight to be given to both general and personal deterrence when sentencing the Applicant (ROS13):

11. [60]

    His Honour assessed the Applicant’s prospects of rehabilitation and risk of reoffending as being poor (ROS13-14):

12. [61]

    Before moving to sentence the Applicant, his Honour referred to totality and the relevance of other sentencing decisions for counterfeiting offences (ROS14):

Sentencing For Counterfeit Money Offences and Identity Fraud Offences

1. [62]

   Decisions of intermediate appellate courts have identified principles of particular importance when sentencing a person for counterfeit money offences and identity fraud offences.

2. [63]

   It has been said that counterfeit money offences undermine community confidence in currency and its place in the banking system: R v Rohde (1985) 17 A Crim R 166 at 173. In R v Institoris (2002) 129 A Crim R 458; [2002] NSWCCA 8, Levine J said at [38]:

3. [64]

   Although Levine J’s comments in R v Institoris were directed to counterfeiting of Australian currency, they have ready application to this case where the Applicant put into circulation in Australia a large number of counterfeit Euro notes. Offences of this type undermine confidence in foreign currencies which are traded regularly within Australia and internationally.

4. [65]

   Whilst it has been said that making counterfeit notes is the more serious offence (R v Institoris at [77]), it is the uttering of counterfeit notes which puts them into circulation, thereby undermining confidence in the currency system and with the person uttering the counterfeit notes obtaining a direct financial benefit from that criminal activity. This is especially so with the Applicant’s offences where an elaborate and apparently convincing use was made, on a systematic basis, of false identity documents to facilitate the uttering of counterfeit Euro notes for the substantial financial benefit of the Applicant. As the sentencing Judge found, the Applicant (with two exceptions) “skilfully and carefully executed the offences in a highly organised way that did not arouse suspicion on the part of bank staff” (see [57] above).

5. [66]

   The quantity and quality of counterfeit notes uttered by the Applicant is a significant factor on sentence, as is the value of the proceeds derived from the commission of his uttering offences: R v Institoris at [78]; R v Gittani [2002] NSWCCA 139 at [22]-[23].

6. [67]

   General deterrence is an important factor on sentence for counterfeiting offences: R v Gittani at [22]-[23]. As it happens, specific deterrence was also a significant factor given the Applicant’s history of fraud offences.

7. [68]

   In Sabbah v R (Cth) (2020) 283 A Crim R 78; [2020] NSWCCA 89, this Court referred to the decisions in R v Rohde, R v Institoris and R v Gittani in the course of dismissing a sentence appeal for counterfeiting offences. It was emphasised that, since Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284, any statement in authorities that counterfeiting offenders should or must ordinarily “go to gaol” cannot be treated as a statement of binding principle: Sabbah v R (Cth) at [2]-[10], [159].

8. [69]

   However, nothing said in Sabbah v R (Cth) qualified the statements made in earlier cases concerning the significance of particular factors on sentence for counterfeiting offences (as summarised at [63]-[68] above).

9. [70]

   The Applicant’s 54 offences under the Currency Act (18 on the indictment and 36 on the s.16BA Schedule) were linked to a total of 83 (21 on the indictment and 62 on the s.16BA Schedule) offences under ss.137 and 140 Anti-Money Laundering Act. The offences under the Anti-Money Laundering Act involved a form of identity fraud where false identifications were used to deceive bank officials and facilitate the counterfeit money offences.

10. [71]

    It has been said that the systematic use of false documents as proof of false identity demonstrates an element of planning and sophistication and a high level of objective criminality: Van Haltren v R (2008) 191 A Crim R 53; [2008] NSWCCA 274 at [87]. Where offences of this type are committed over a period of time with the offender being motivated by greed, both personal and general deterrence should be reflected on sentence: Van Haltren v R at [86]. The significance of general deterrence when sentencing for identity crime has been emphasised: Stevens v R [2009] NSWCCA 260 at [1]-[7], [79].

11. [72]

    These principles have application to the Applicant’s case as well, given the combination of serious offences committed by him under the Currency Act and the Anti-Money Laundering Act.

Aspects of the Applicant’s Offences

1. [73]

   The Applicant’s offences involved a combined total of $306,162.57 in counterfeit notes being uttered by him or found in his possession, arising from the sum of $103,349.72 for the offences on the indictment and $202,812.85 for the offences on the s.16BA Schedule. The number and value of counterfeit notes bears upon the objective gravity of the offending and a very substantial sum and number of notes were involved in the Applicant’s offences. There were multiple offences committed by the Applicant at different locations within Australia, with a high degree of organisation and planning.

2. [74]

   Within a short period of the Applicant’s arrival in Australia on 25 September 2014, the Applicant was uttering counterfeit money and using false names and false passports as aids to his dishonest activity. He facilitated the offending by opening various bank accounts using several false passports stamped with false immigration stamps.

3. [75]

   The Applicant was about 52 years old at the time of the offences. He presented convincingly at the various banks as a mature man with what appeared to be bona fide Euro transactions to be undertaken.

4. [76]

   The Applicant criss-crossed around Australia in pursuit of his criminal activities. On 9 October 2014, he flew to Melbourne and then returned to Perth on 18 October 2014 before returning, once again, to Melbourne to commit further offences in Victoria.

5. [77]

   He flew to Adelaide on 26 October 2014 and committed a series of offences there over a two-day period before returning to Melbourne and then to Perth before departing to Abu Dhabi. The Applicant’s movements around Australia spread his criminal activities in a manner which was undoubtedly intended to reduce the prospect of detection.

6. [78]

   The Applicant’s offences were committed over a period of about three months although there was a gap in the commission of offences between 2 November 2014 and 4 January 2015 whilst the Applicant was overseas.

7. [79]

   The Applicant returned to Australia in 2015, flying from Doha to Melbourne before travelling to Sydney the next day. But for one slip in Melbourne on 21 October 2014 (when he failed to replicate the signature on the false passport), the Applicant continued successfully with his criminal activities until his detection and arrest at Parramatta on 8 January 2015. It may be concluded readily that, but for the Applicant’s arrest, his offending conduct would have continued.

8. [80]

   The sentencing Judge found that the Applicant’s motive for offending was greed. Whilst noting the Applicant’s claim of a gambling addiction, the sentencing Judge observed that this may explain his offending behaviour, but not excuse it. To the extent that there was evidence of a gambling addiction on the Applicant’s part, his Honour’s approach was consistent with authority that the commission of offences to feed a gambling addiction will not generally be a mitigating factor on sentence: Johnston v R [2017] NSWCCA 53 at [36]ff.

9. [81]

   The sentencing Judge was correct to have regard to the importance of maintenance of public confidence in the currency system, passport and immigration procedures as well as mechanisms employed by banks and others to guard against the use of false identity documents (see [59] above).

10. [82]

    The objective criminality of the Applicant’s offences was substantial indeed.

11. [83]

    General deterrence was an important factor on sentence (ROS13 at [59] above).

12. [84]

    Specific deterrence was an important factor in the Applicant’s case given his prior history of offences of dishonesty involving fraud and falsification of documents in Germany in 1992, 1994, 2000 and 2006 (ROS13 at [59] above).

13. [85]

    Subject to what follows concerning the Applicant’s prospects of rehabilitation and risk of reoffending, all findings made by the sentencing Judge, apart from that with respect to the guilty pleas, should stand for the purpose of resentence.

The Additional Evidence on Appeal

1. [86]

   The affidavit of the Applicant, and supporting documentation attached to the affidavit of Ms Knowles of 4 November 2020, outlined the Applicant’s placement and employment history in custody since he was sentenced in June 2016.

2. [87]

   The Applicant has demonstrated a positive approach to his custodial employment since 2016 and has undertaken a number of courses and programs.

3. [88]

   The sentencing Judge considered that the Applicant’s prospects of rehabilitation and not reoffending were poor (see [60] above). For the purpose of assessing this aspect on resentence, regard should be had to the Applicant’s progress in custody since 2016.

4. [89]

   It should be kept in mind that the Applicant has demonstrated an established history of dishonest conduct in his offending history so that there remains a risk of reoffending once he is released into the community. This is especially so if there is a gambling problem which does not appear to have been addressed during his time in custody.

5. [90]

   Further, the Applicant’s good behaviour in prison may be an unhelpful indicator concerning his prospects of rehabilitation and risk of reoffending. The Applicant has demonstrated a propensity for criminal deception of others. He is a recidivist fraudster. It does not appear that there are criminogenic factors in his background which he has, in some way, brought under control in custody.

6. [91]

   The Applicant is now 58 years of age. His age may provide some assistance to him with respect to the risk of reoffending. As the Applicant is a foreign national, he expects to be deported to Germany when released from custody. In his affidavit of 20 October 2020, the Applicant looks forward to returning to Germany and re-establishing contact with his parents.

7. [92]

   The Applicant’s prospects of rehabilitation and risk of reoffending may be seen now, in a guarded way, as being a little better than the bleak assessment made by the sentencing Judge.

The Applicant’s Pleas of Guilty

1. [93]

   When resentencing the Applicant, the Crown acknowledged that his early guilty pleas should be given significant weight in terms of their objective utilitarian value. It is apparent from the number of charges on the indictment and the s.16BA Schedule that, had the Applicant defended the matters, the trial would likely have proceeded for some weeks and involved a level of complexity. This bears upon the utilitarian value of his guilty pleas.

2. [94]

   At the time when Xiao v R and Bae v R were decided, s.16A(2)(g) Crimes Act 1914 (Cth) required a sentencing court to take into account “if the person has pleaded guilty to the charge in respect of the offence - that fact”.

3. [95]

   Section 16A Crimes Act 1914 (Cth) has been amended so that, since 20 July 2020, s.16A(2)(g) now provides that a sentencing court must take into account:

4. [96]

   In resentencing the Applicant, this Court should apply s.16A(2)(g) in its present form which gives effect to aspects of the utilitarian value of a guilty plea as described in Xiao v R and Bae v R.

5. [97]

   For the purpose of resentencing, a 25% discount should be extended to the Applicant for the utilitarian value of his guilty pleas. I accept that the sentencing Judge took into account aspects of the Applicant’s guilty pleas in an unquantified way and in his favour on sentence. It is necessary for the Court not to double count factors in the Applicant’s favour on sentence: Bae v R at [56]-[57] (at [47] above).

Resentencing the Applicant

1. [98]

   It is appropriate to proceed by way of aggregate sentence, a course which is available when sentencing a person for several Commonwealth offences: Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 at [141]-[146].

2. [99]

   The 25% discount for the Applicant’s pleas of guilty is to be applied to the indicative sentences and not the aggregate sentence itself.

3. [100]

   These were offences of substantial objective gravity. It is necessary that the sentence reflect the need for proportionality together with the need for general deterrence and specific deterrence and application of the totality principle.

4. [101]

   Having regard to all relevant factors and after applying the 25% discount (with some rounding), I would nominate the following indicative sentences for the counts on the indictment, with the 98 offences on the s.16BA Schedule to be taken into account, once again, on sentence for Count 1:

5. [102]

   The Applicant should be sentenced to an aggregate term of imprisonment for nine years and six months comprising a non-parole period of six years and four months commencing on 8 January 2015 and expiring on 7 May 2021, with a balance of term of three years and two months commencing on 8 May 2021 and expiring on 7 July 2024.

Conclusion

1. [103]

   It is appropriate to grant an extension of time for the Applicant to seek leave to appeal against sentence and to make further orders allowing the appeal and resentencing the Applicant.

2. [104]

   I propose the following orders:

3. [105]

   R A HULME J: I agree with Johnson J.