Cases and authorities

CIVIL PROCEDURE — Interlocutory applications — Application to amend notice of motion — Whether defendants should be granted leave to amend notice of motion — Where defendants sought summary dismissal of plaintiff’s claim — Where defendants sought to amend notice of motion to seek summary dismissal on a different basis. CIVIL PROCEDURE — Pleadings — Amendment — Application to amend statement of claim — Whether proposed amended statement of claim discloses a reasonable cause of action — Whether proposed amended statement of claim has a tendency to cause prejudice or embarrassment or is otherwise an abuse of process. CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings — Whether proceedings should be dismissed for failure to disclose a reasonable cause of action — Where plaintiff failed to file a statement of claim in appropriate form — Where plaintiff given multiple opportunities and received pro bono legal assistance — Whether order should be made barring the plaintiff from instituting fresh proceedings in respect of the same or substantially the same causes of action.

LOCAL COURT APPEAL – judgment sum – costs – no question of principle

PROCEDURE – Motion seeking security for costs of an appeal – whether respondents have demonstrated special circumstances exist enlivening the discretion to order security for costs – where appellant has not led any evidence or defended the motion – where appellant has not established that order for security for costs would stultify appeal – where appellant seeks to raise wide-ranging arguments on appeal – where appellant seeks to raise on appeal new points not raised at trial – where prospects of success in appeal are very weak – where real risk that respondents would not recover costs of appeal from appellant if they are successful.

REAL PROPERTY — Strata title — General matters — whether Ch 5 of the Strata Schemes Management Act 1996 (NSW) has the effect of excluding a claim for common law damages — construction of s 226 of the Strata Schemes Management Act 1996 (NSW) — whether appellant has a right or remedy arising “apart from this Act” — whether appellant’s right to sue at common law is preserved by s 226

CRIME – appeals – sentence – disparity – where both offenders sentenced by same judge at different times – consideration of sentencing judge’s finding that co-offender was marginally less involved than applicant in commission of offence – whether applicant has justifiable sense of grievance

CRIME – leave to appeal against sentence – where appellant convicted of offence against public justice – pursuant to s 314 of the Crimes Act 1900 (NSW) – whether sentencing judge erred in consideration of the applicant’s mental state – whether sentence manifestly excessive – appeal allowed – discretion to re-sentence exercised – lower sentence imposed

CRIMINAL LAW – appeal against sentence – conspiracy to import a commercial quantity of cocaine – whether judge erred in failing to adopt instinctive synthesis approach in sentencing applicant – concession of error by the Crown – re-sentence – consideration of the extent of the applicant’s knowledge of the amount of the imported cocaine – consideration of parity of co-offender’s sentences – whether justifiable sense of grievance – consideration of additional material on re-sentence – whether hardship to applicant’s family exceptional – consideration of past and indicated future assistance to police – whether lesser sentence warranted

DEFAMATION – interlocutory injunctions – overseas newspaper publishing highly defamatory article about the plaintiff – where article taken down immediately in response to complaint but subsequently re-posted – desirability of having evidence as to falsity of imputations

PROCEEDS OF CRIME – application for restraining orders – no question of principle

PROCEEDS OF CRIME – application for restraining orders – no question of principle

NEGLIGENCE – complex and extensive history of litigation between the plaintiff and family members and by the plaintiff against several former lawyers – in the original transaction the plaintiff became registered as owner of a rural property in 1979. In 1990 her father brought proceedings against the plaintiff and the plaintiff was represented in those proceedings and at the settlement of those proceedings by firm No 1. Later the plaintiff retained firm No 2 to bring proceedings against firm No 1 in connection with their handling of the original matter, and firm No 3 was retained to attempt to resolve those proceedings against firm No 1. After resolution of the proceedings against firm No 1, the plaintiff was advised by firm No 3 (i.e. the defendants) that she did not have “high prospects” of success against firm No 2 for the manner in which firm No 2 had conducted the proceedings against firm No 1. The plaintiff alleged that the defendants’ advice was negligently given and that the defendants had breached a fiduciary obligation to the plaintiff, including a duty to act in her best interests and that the defendants had engaged in misleading and deceptive conduct – whether the advice given was negligent – whether the advice was relied on by the plaintiff – whether there was any breach of fiduciary duty or any misleading and deceptive conduct – discussion of other issues impacting on the quantification of damages if liability had been established, including matters relating to Crown Lands Consolidation Act 1913 (NSW).

COSTS – dispute over whether easement allows dominant tenement owner to lodge Development Application for construction of a driveway – plaintiff succeeded on question of principle but defendants had some success in resisting relief – no question of principle

CORPORATIONS — Directors and officers — Directors’ duties — whether Second Defendant breached directors’ duties in causing, or failing to prevent, company from making payments to its detriment – whether Second Defendant de facto director of company after ceasing to be recorded as director – whether payments recoverable against payee as loan

LAND LAW – conveyancing – the contract for sale – rescission – “off the plan” purchases – vendor required to use all reasonable endeavours to cause plan of subdivision to be registered – plan not registered by required date – whether vendor used all reasonable endeavours – whether vendor entitled to rescind – rescissions ineffective CONTRACTS – construction and interpretation – vendor required to use all reasonable endeavours to cause plan of subdivision to be registered – whether right to rescind conditional on use of all reasonable endeavours – whether right of rescission lost due to default of rescinding party

HIGH RISK OFFENDER – interim detention order sought – where defendant recently charged with further serious violence offence in custody – order made

ADMINISTRATIVE LAW – judicial review of decision of Local Aboriginal Land Council – reasons sought – consideration of r 59.9 of the Uniform Civil Procedure Rules 2005 (NSW) PRACTICE AND PROCEDURE – leave to seek discovery in judicial review proceedings – r 59.7 of the UCPR

CRIMINAL PROCEDURE – tendency evidence

SEARCH WARRANT – issued by Registrar of Local Court as eligible issuing officer – plaintiff occupier precluded from obtaining material that supported issue of warrant – material transferred from Local Court to Supreme Court pursuant to UCPR 33.13 – plaintiff challenges validity of warrant – plaintiffs seeks production of material – application granted subject to claim for public interest immunity

DAMAGES — General principles — Incidence of taxation as affecting damages — Mesne profits

EVIDENCE – ss 139 and 138 Evidence Act 1995 – whether improperly obtained evidence – failure to caution the accused – evidence improperly obtained – on balance admissible pursuant to s 138 Evidence Act.

CORPORATIONS — Voluntary administration — Deed of company arrangement – where deed to be put to second creditors’ meeting – whether s 439A report inadequate – whether deed proponent and members entitled to vote – whether orders should be made as to voting entitlements

LEGAL PRACTITIONERS – application for certificate from local admission board in 2015 – applicant removed from solicitors roll in 1988 following conviction for conspiracy to corrupt Minister for Corrective Services – board refused to issue certificate – de novo hearing before primary judge – appeal from decision of primary judge dismissing appeal – no appellable error disclosed in decision that applicant had failed to discharge heavy burden borne by him – appeal dismissed

DEFAMATION – objections to imputations – no question of principle

CORPORATIONS — Winding up — Liquidators — Appointment – where Plaintiffs and Defendants seek appointment of different liquidators – which of two liquidators should be appointed COSTS — Party/Party — General rule that costs follow the event – where Plaintiffs’ success could have been achieved on narrower grounds – where hearing would have been significantly shortened if Plaintiffs had not unsuccessfully raised broader issues

CORPORATIONS — Dissolution — Reinstatement – where Plaintiff seeks to reinstate company to bring proceedings – where company’s liabilities exceed assets – where company’s directors would be in deadlock – whether Plaintiff person aggrieved – whether reinstatement just.

CIVIL PROCEDURE – application for discovery and interrogatories in proceedings for defamation – defendant seeking to prove plaintiff’s reputation as “an associate of criminals” – unlikelihood that plaintiff would hold documents or have knowledge as to his own reputation

CIVIL PROCEDURE – mediation – one party expressing fear of being present in a room with the other – appropriateness of ordering mediation over objection in that circumstance – where counsel confident steps could be taken to obviate concern

Contracts – oral settlement agreement – enforceability – ostensible authority to enter agreement – prior judgment and garnishee proceedings – deed drafted but not executed – no requirement for execution of deed – no requirement for agreement on mode of payment or on setting aside of judgment

CIVIL PROCEDURE – security for costs – plaintiff ordinarily resident outside Australia – relevance of apparent strength of plaintiff’s claim – proportionality of costs – Court’s duty to seek to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings – requirement for the Court to take a robust and proactive approach in case management – undesirability of requiring a plaintiff to provide security for the cost of conducting a luxurious, optimistic defence

COSTS – indemnity costs – offer of compromise – whether plaintiff obtained a result no less favourable than offer – whether component of agreed verdict should be seen as damages in the nature of interest – whether court should otherwise order for purpose of UCPR r 42.14

CIVIL PROCEDURE – application for leave to appeal a decision of the NCAT Appeal Panel – statutory construction of s 79(1) Fair Trading Act 1987 – procedural fairness – no error found – leave to appeal refused

CORPORATIONS – Leave to proceed against company in liquidation pursuant to s 500(2) of the Corporations Act 2001 (Cth)

COSTS – whether to make costs order against submitting party – where submitting party an administrative decision-maker COSTS – whether to issue certificate under s 6(1) of the Suitors’ Fund Act – whether proceedings “in the nature of an appeal” – whether review panel a “court”

COSTS – where applicant was granted leave to have separate representation in respect of cross-claim – where third defendant opposed order sought – appropriate costs order

PROCEDURE – judgments and orders – where applicant sought stay of order granting probate of a will pending the hearing of an appeal – where volume of evidence before the Court prevents displacement of presumption that appeal is arguable – whether balance of convenience favours the grant of a stay – where contracts for the sale of properties that fall into residue under the will have been completed or will soon complete – where executors will breach uncompleted contracts for sale if stay is granted – where executors have undertaken not to make any further distributions from the estate and not to pay legal costs until appeals are decided. PROCEDURE – where applicant seeks review of Registrar’s decision on matter of practice or procedure – whether applicant has demonstrated basis for discretionary intervention. SUCCESSION – where applicant seeks full accounting for the executors’ administration – any claim for accounts should be made in the probate proceedings pursuant to Supreme Court Rules 1970, Pt 78, rr 75 and 89.

APPEAL – Court of Appeal – Stay of Proceedings – appeal not reasonably arguable – balance of convenience favours the respondents – notice of motion dismissed

COSTS – party/party – orders when proceedings involve multiple parties – appeals – costs where appeal succeeds in part

CRIME – appeal – sentence – conspiracy to import a commercial quantity of a border-controlled precursor – whether erroneous disparity between sentences of offender and co-offender – where co-offender played a greater role within the hierarchy – whether sentence manifestly excessive – appeal dismissed

CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — where limitation period may expire while application for leave part heard – whether interim leave should be granted pending hearing of application

BUILDING AND CONSTRUCTION – Building and Construction Security of Payment Act 1999 (NSW) s 13(5) – whether adjudication determination is valid – whether there was more than one payment claim served in respect of the same reference date

SENTENCING – accessory before the fact to murder – offender participated in digging of grave for deceased in anticipation of murder – deceased hostile towards offender – offender assisted principal offenders on account of concern deceased would reveal cannabis farming enterprise – grave digging an important preparatory step constituting endorsement of planned murder – offender physically disabled with disadvantageous background – consideration of factors in Bugmy v The Queen.

CIVIL – costs – determined in Chambers – result of motion dispositive of whole proceedings – costs ordered of motion and proceedings

ADMINISTRATIVE LAW – Judicial review – workplace injury – statutory assessment made by medical appeal panel – limitations of a medical appeal panel – error of law identified

PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) – Whether registration in respect of statutory licences amounted to an encumbrance CONTRACT – Terms – Whether express or implied term obliged vendor to convey statutory licences free of encumbrances ESTOPPEL– Estoppel by representation and estoppel by convention – Whether vendor estopped from denying existence of term obliging it to convey statutory licences free of encumbrances – Equitable estoppels – Whether vendor made clear and unequivocal assurances on which purchaser relied to its detriment CONTRACT – Termination – Repudiation – Whether purchaser repudiated contract – Whether vendor accepted repudiation by filing of cross-summons EQUITY – Relief against forfeiture – Whether vendor’s reliance upon common law right of termination is unconscientious by reason of fraud, accident, mistake or surprise

INSURANCE – accident and sickness insurance – where policy taken out by trustee of superannuation fund with insurer for benefit of its members – respondent claimed benefit for “total and permanent disablement” after suffering back injury while working as a roofing supervisor – insurer’s liability contingent on it forming a favourable opinion that claimant meets definition of total and permanent disablement (TPD) – where insurer formed unfavourable opinion that claimant did not satisfy definition of TPD – standard of review adopted by Court – whether unreasonableness in the Wednesbury sense – whether Court undertakes “merits review” of insurer’s opinion on entirely objective basis – whether opinion open to insurer acting reasonably and fairly on the material before it. INSURANCE – accident and sickness insurance –construction of phrase “reasonably fitted by education, training or experience” (ETE clause) – where respondent has discrete transferable skills relevant to non-labouring customer service roles but no vocational history in such roles – whether ETE clause requires a connection between suggested future work and the claimant’s education, training and experience.

ADMINISTRATIVE LAW – appeal from decision of New South Wales Civil and Administrative Tribunal – questions of law – review of decision of New South Wales Children’s Guardian – whether individual entitled to working with children check clearance – where individual with history of criminality and misconduct – where individual declined psychiatric assessment – appeal dismissed

COSTS — Costs incurred by non-parties — where non-parties heard in opposition to proposed creditors’ schemes of arrangement not directly binding them – where contentions unsuccessful but not frivolous nor without substance – where evidence overlapped with other evidence – whether Plaintiffs should pay objectors’ costs

Torts – Negligence – Duty of care – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the defendant owed to passengers on board such vessels which approached Christmas Island between September and December 2010 a duty to take reasonable care in the exercise of its powers and the deployment of its resources so as to avoid foreseeable physical harm to those passengers Torts – Negligence – Duty of care – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the defendant owed the relatives of passengers on board such vessels which approached Christmas Island in the period September to December 2010 a duty to take reasonable care in the exercise of its powers and the deployment of its resources so as to avoid foreseeable psychiatric injury to those relatives Torts – Negligence – Duty of care – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the defendant owed rescuers and onlookers a duty to take reasonable care in the exercise of its powers and the deployment of its resources so as to avoid rescuers and onlookers suffering foreseeable mental harm Torts – Negligence – Duty of care – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the defendant owed to passengers on board such vessels a duty to take reasonable care in the exercise of its powers and the deployment of its resources so as to avoid foreseeable loss of property belonging to those passengers Torts – Negligence – Duty of care – Where suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the risk of the suspected illegal entry vessel becoming shipwrecked was a foreseeable risk - Whether such risk was an obvious risk – Whether such risk was an inherent risk – Civil Liability Act 2002 (WA) ss. 5B, 5E, 5F, 5N, 5O and 5P Torts – Negligence – Duty of care – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the risk of the vessel becoming shipwrecked was not insignificant – Civil Liability Act 2002 (WA) s. 5B Torts – Negligence – Duty of care – Where suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept Suspected Illegal Entry Vessels – Whether in response to the risk of a suspected illegal entry vessel becoming shipwrecked a reasonable public authority in the position of the defendant would have taken the precaution of not permitting other vessels to remain out of survey and thus remain incapable of use in attending to any vessels in distress in Australian territorial waters Torts – Negligence – Duty of care – Where suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Where one such vessel became shipwrecked – Whether in response to the risk of a suspected illegal entry vessel becoming shipwrecked a reasonable public authority in the position of the defendant would have taken the precaution of returning an available vessel to patrol at the usual position of intercept of such vessels to the north of Christmas Island Torts – Negligence – Duty of care – Where suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether those in command of vessels engaged in the operation knew or had reason to suspect that a suspected illegal entry vessel was approaching Christmas Island from the north in poor weather and in distress at a particular time Torts – Negligence – Duty of care – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether in response to the risk of such a vessel becoming shipwrecked and finding itself in distress the defendant should have taken the precaution of attending upon the vessel to assist earlier than it did Torts – Negligence – Duty of care – Where suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the vessel would have not have become shipwrecked had the defendant taken other precautions Torts – Negligence – Duty of care – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Where the defendant became the owner of the vessel by virtue of statutory forfeiture – Whether as a result of such ownership the defendant assumed duties and responsibilities analogous to those owed by an occupier of premises to an entrant – Migration Act 1958 (Cth) s. 261A, 261D, 261F Torts – Breach of Statutory Duty – Where a suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Whether the defendant’s servants or agents who were in command of nearby vessels owed a statutory duty – Whether any such duty owed was breached – Navigation Act 1912 (Cth) ss. 3, 10, 261A, 265 Torts – Breach of Statutory Duty – Where suspected illegal entry vessel with a number of people on board sailed from Indonesia to Australia – Where those on board were attempting to gain entry into Australia illegally – Where vessel experienced monsoonal weather conditions near Christmas Island and became shipwrecked – Where a number of people lost their lives – Where Border Protection Command was carrying out an operation in the vicinity of Christmas Island one of the objects of which was to intercept suspected illegal entry vessels – Where one such vessel became shipwrecked – Where the defendant became owner of the vessel by virtue of statutory forfeiture – Whether by reason of that ownership of the vessel the defendant owed a statutory duty – Whether any such duty owed was breached – Migration Act 1958 (Cth) s. 261A – Navigation Act 1912 (Cth) ss. 208, 227B Practice and procedure – Amendment of pleadings - Limitation period – Whether certain causes of action relied upon the plaintiffs were outside the applicable limitation period – Whether causes of action pleaded in a further amended statement of claim arose out of substantially the same set of facts as those originally pleaded – Limitation Act 2005 (WA) s. 14 – Limitation Act 1969 (NSW) s. 18A – Civil Procedure Act 2005 (NSW) ss. 64, 65 Words and phrases – “send” – “forfeiture” – “sends any ship to sea”

CRIMINAL LAW – appeal – conviction – whether the duty breached by the applicant was bad in law – whether the issues at trial were within the exclusive cognisance of the NSW Parliament and should not have been determined in the Supreme Court – whether the offence of official misconduct does not cover members of Parliament acting in their capacity as such – whether trial judge misdirected the jury on the element of “seriousness” – whether the verdict in relation to the “wilfulness” element is unreasonable or cannot be supported having regard to the evidence – whether trial judge misdirected the jury on the element of “wilfulness” – whether miscarriage of justice by reason that applicant’s lawyers failed to adduce evidence on various matters CRIMINAL LAW – appeal – sentencing – common law offence – whether trial judge erred in concluding that offences found in Part 4A of the Crimes Act were the relevant analogue – whether trial judge erred in finding that the applicant had been solely motivated to benefit himself or his family – whether trial judge erred in taking into account that the jury had been satisfied the conduct merited criminal punishment – whether trial judge denied the applicant procedural fairness in holding that the mitigating factor under s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999 had not been made out – whether trial judge erred in finding that damage caused to the institutions of government constituted loss or damage for the purposes of s 21A – whether the sentence imposed was manifestly excessive

CRIME – sentencing – aggregate sentence – whether aggregate sentence can be suspended – whether necessary to determine – Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 CRIME – sentencing – whether suspended sentence “contrary to law” – effect of reopening sentence if not contrary to law – whether necessary to determine – Crimes (Sentencing Procedure) Act 1999 (NSW), s 43 CRIME – sentencing – prosecution appeal against inadequate sentences – suspended sentences of imprisonment in relation to three offences involving domestic violence – whether objective seriousness of offending recognized – importance of specific and general deterrence – weight to be given to standard non-parole periods – whether non-custodial sentence manifestly inadequate – residual discretion to intervene