Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Branagan v R [2020] NSWCCA 158 Hearing dates: 2 June 2020 Date of orders: 13 July 2020 Decision date: 13 July 2020 Before: Bathurst CJ at [1] Price J at [2] N Adams J at [86] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIME – Appeals – Appeal against aggregate sentence – aggravated break, enter and commit serious indictable offence (sexual intercourse without consent) and two other counts – whether error in assessing objective criminality of count 1 – whether indicative sentence for count 1 manifestly excessive – limitations of sentencing statistics – whether aggregate sentence manifestly excessive. Legislation Cited: Crimes Act 1900 (NSW) ss 61L, 61N(2), 105A, 112(2) Cases Cited: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2; 88 ALJR 372; 305 ALR 323; 236 A Crim R 116 BJS v R [2013] NSWCCA 123; 231 A Crim R 537 Field v R [2020] NSWCCA 105 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; 85 ALJR 195; 272 ALR 465; 204 A Crim R 434 Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46; 61 ALJR 525; 74 ALR 1; 27 A Crim R 465 JM v R [2014] NSWCCA 297; 246 A Crim R 528 Lees v R [2019] NSWCCA 65 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; 79 ALJR 1048; 215 ALR 213 Mulato v R [2006] NSWCCA 282 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 PD v R [2012] NSWCCA 244 R v Hunyh [2005] NSWCCA 220 R v PGM [2008] NSWCCA 172; 187 A Crim R 152 R v Simpson (1992) 61 A Crim R 58 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Matthew David Branagan (Applicant) Regina (Respondent) Representation: Counsel: Ms S Kluss (Applicant) Mr R Howle (Respondent) Solicitors: R Hill & Associates (Applicant) Solicitor for the Office of the Director of Public Prosecutions (Respondent) File Number(s): 2017/00308673 Publication restriction: Statutory prohibition on publication in relation to identity of the complainant under s 578A of the Crimes Act 1900 (NSW) Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 14 June 2019 Before: Huggett DCJ File Number(s): 2017/00308673 Judgment 1. BATHURST CJ: For the reasons given by Price J I agree that leave to appeal should be granted but the appeal dismissed. 2. PRICE J: The applicant seeks leave to appeal against an aggregate term of 5 years 6 months imprisonment with an aggregate non-parole period of 3 years and 3 months which was imposed upon him by Huggett DCJ (the judge) in the District Court at Sydney on 20 September 2019. 3. Details of the offences and indicative sentences appear in the following Table. All of the offences concerned MG and took place in her bedroom in her inner-city home where she lived with two housemates in the early hours of the morning on 8 October 2017. Count Offence Maximum Penalty Indicative Sentence 1 Aggravated break, enter and commit serious indictable offence (sexual intercourse without consent) contrary to s 112(2) of the Crimes Act 1900 (NSW) 20 years imprisonment 5 years with NPP of 3 years (SNPP 5 years) 3 Indecent assault contrary to s 61L of the Crimes Act 5 years imprisonment 15 months imprisonment 4 Commit act of indecency contrary to s 61N(2) of the Crimes Act 18 months imprisonment 10 months 1. The applicant was found guilty of these offences on 14 June 2019 after a jury trial. The jury was not required to return a verdict on count 2 as it was the alternative to count 1. Notice of Appeal 1. The notice of appeal identifies the following grounds: "Ground One: Her Honour erred in her assessment of the objective criminality with respect to count 1 and elevated the indicative sentence which informs the aggregate sentence. Ground Two: Her Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to discern) and the sentence is manifestly excessive." The Sentencing Proceedings 1. The sentencing proceedings took place before the judge on 20 September 2019 after which the applicant was sentenced. 2. The applicant did not give evidence during the sentencing proceedings but the written material tendered in his case included the applicant's affidavit, a letter to the judge from his parents, two reports from a colorectal surgeon concerning the applicant's mother, various character references and a letter from Glen Pratt as to the applicant's completion of the Therapeutic Drug Rehabilitation Program. Facts 1. It is convenient to detail the findings of fact made in her Honour's remarks on sentence. These finding were based upon the evidence in the trial and are consistent with the verdicts of the jury. They are not challenged by the applicant. 2. The offences were carried out in a single incident in the early hours of 8 October 2017. MG had been with her two housemates the evening of 7 October 2017, with whom she shared a three story terrace house. MG occupied the second floor, while Mr T occupied the top floor and Ms M occupied a "granny flat" which adjoined the property with separate access through the back door. 3. During the evening of 7 October 2017, MG attended a local hotel and met the applicant. There was no substantial interaction between them. 4. MG left the hotel at approximately 3:10am. She recollected that she returned home, went to her room, removed her clothing and had gone to sleep, but she had in fact fallen asleep on the toilet in the downstairs bathroom. 5. Ms M returned to the house with the applicant and found MG asleep in that bathroom. Ms M assisted MG in getting to bed while the applicant waited on the ground floor. Ms M then retired to the granny flat with the applicant. 6. Prior to 6:00am, the applicant exited the granny flat, climbed onto the roof, and entered the main part of the property through a closed but unlocked window. 7. The applicant then opened MG's closed bedroom door and entered the room. 8. MG had removed her clothes prior to having fallen asleep. The applicant then removed his clothes. 9. MG woke to find the applicant naked in her bed, her first recollection being that he had his penis inside her mouth and was saying "suck it". The applicant's penis was in MG's mouth for a few seconds and was flaccid. 10. At that point MG did not recognise the applicant as the same man that she had been introduced to at the hotel by Ms M. 11. After removing his penis, the applicant lay next to MG and began masturbating. He then touched MG's torso and arms with his hands, and tried to kiss her, but did not actually succeed in that regard. During this time, MG remembers repeatedly saying "this is not okay with me". 12. The applicant then got out of MG's bed and began looking through her drawers. He said that he was looking for lubricant, and upon finding moisturiser used it to masturbate himself. The applicant eventually said "I'm sorry. I can't get it up. I have had too much coke." MG replied "You need to stop" and "this is not okay with me", to which the applicant replied "I am sorry, I'll go" and stopped masturbating. 13. He dressed and entered his phone number into MG's phone under the name of 'Matt'. He then returned to the granny flat where he stayed for some time with Ms M. The applicant left the property the following morning. 14. There were various phone calls that morning between MG and the applicant during which the applicant apologised to her for his behaviour. He agreed to meet MG in a local park where he again apologised and said that he needed professional help. 15. MG made a statement to police on 10 October 2017. She participated in a pretext call with the applicant, during which he said for the first time that they had had a conversation beforehand and that there was kissing involved. 16. The applicant was arrested on 12 October 2017. Some findings by the judge 1. In assessing the objective gravity of the offences, the judge observed that each offence was committed in MG's bedroom after she had closed her bedroom door and had gone to bed, having removed her clothes before getting into bed. The judge said that MG's bedroom was a location where she was entitled to feel safe and secure. 2. The judge recognised that count 1 was "committed in [MG's] bedroom because of that degree of overlap". 3. Her Honour said that each offence was committed by a person who was in effect a stranger to MG. The judge found that MG had not engaged "in any meaningful conduct at all with [the applicant] that evening that could have led him to believe she was consenting". 4. The judge found that each offence was of short duration, the longest one being count 4 which was "a non-contact offence and it [was] accepted that there was no force, threat, intimidation or violence used". 5. Her Honour accepted that each offence was spontaneous and unplanned and that the applicant had an interest in getting back into the home to retrieve his mobile telephone. 6. The judge was unable to be satisfied that he planned to sexually assault MG when he broke and entered the house. However, her Honour was satisfied that when the applicant entered MG's bedroom and made the decision to remove his clothes, he had a plan or intention to engage in sexual activity with MG, who was then asleep. 7. Her Honour was satisfied beyond reasonable doubt that the applicant had some idea MG "was intoxicated to some extent and/or tired". Her Honour said the applicant was downstairs in a very small terrace when Ms M assisted and took her upstairs into her bedroom after MG had fallen asleep on the toilet. 8. The judge found that counts 3 and 4 occurred in circumstances where MG made clear to the applicant she did not want him to do what he was doing. Her Honour said that whilst that was not the case for count 1, the applicant had not given MG the opportunity to express that she was not consenting because she was asleep. 9. Her Honour then turned to the particular counts of which the applicant had been found guilty by the jury. 10. The judge said that the applicant had committed count 1 in circumstances where he had been an invited guest to the property. In that sense, he was not a stranger to the house. However, balanced against that was the fact he had committed a very serious example of a serious indictable offence. Her Honour said that the act of sexual intercourse was a particularly intimate act of fellatio which had lasted only "a couple of seconds". 11. Her Honour went on to say that whilst it was true that there was an absence of force, violence, threat or intimidation, these were hardly necessary given the act occurred whilst MG was asleep. The judge recounted that the circumstance of aggravation established in count 1 was that the applicant knew that there were persons inside the house at the time of the break and enter. The applicant had very briefly met those persons early that night. The judge said that this was a "considerably less serious 'circumstance of aggravation' than others available for this type of offence". 12. The judge found that the objective seriousness of count 1 fell "around or perhaps just under the middle of the range" for an offence of its type. 13. When referring to count 3, the judge said that the indecent act was the applicant's "touching MG's naked arms and torso and trying to kiss her having got into her bed (having just had his penis in her mouth)". Her Honour found that the offence was "a less serious example of an indecent assault but certainly not at the lowest end of what might be contemplated by such an offence". 14. When referring to count 4, the judge said that the indecent act was the applicant's masturbating in MG's presence, having got out of her bed when she had said many times "this is not okay with me", obtaining moisturiser from a shelf and masturbating using the moisturiser in front of her. 15. The judge found that this was a "serious example of an act of indecency but certainly not the most serious type of conduct contemplated by such an offence". 16. Her Honour then referred to the applicant's personal circumstances in some detail. The applicant was 39 years old when sentenced. Among the matters that her Honour noted were the applicant's loving relationship with his parents and his concern for his mother's health as she had been diagnosed with bowel cancer since he had been in custody. 17. Her Honour recounted the applicant's education and employment history which included an appointment as a National Sales Manager in 2011. Her Honour said that in 2013, the applicant started a company designed to support artists by providing space and resources for them. Following his arrest, the applicant no longer had an involvement with that company. Whilst on bail, the applicant worked at another company in the marketing and promotion sector and had done some community work. 18. The judge observed that the applicant had, to some extent, been involved in community and charity work and there was evidence "confirming this aspect and describing him as a reliable and trustworthy in his volunteer work". Her Honour noted that the applicant was in good physical health with no particular diagnosed mental health concerns. 19. The judge said that the applicant had first used drugs when he was around 16. He had admitted using drugs heavily in his twenties, particularly ecstasy and being addicted to 'ice'. He had used marijuana consistently throughout his adult life. The judge noted that the applicant's ice addiction was no longer a problem, however, the applicant said that "he fell into fairly heavy cocaine use as a result of the association" in the artistic industry. 20. The applicant, her Honour said, had spent eight weeks in rehabilitation which he felt was effective. He had successfully completed the Therapeutic Day Rehabilitation Program and had engaged in some 135 hours of treatment. Her Honour observed that drug tests indicated whilst on bail, the applicant was not using drugs and since being in custody after the jury's verdict, had not taken drugs. The applicant had committed to never using drugs again. 21. The judge said that the applicant had no convictions in New South Wales and a conviction in Victoria in 1996 that had no relevance. The judge found that he was entitled to leniency in that regard. However, her Honour found as a matter of "some aggravation" that the applicant committed the offences whilst on conditional liberty, noting that the applicant was on bail for an unrelated offence which was later withdrawn and dismissed. 22. When referring to the applicant's affidavit, her Honour stated there was no indication that the applicant admitted guilt for these offences or had remorse or insights into the impacts of his offending. Furthermore, there was no acknowledgement that his drug problems were connected to the offences. Her Honour said other evidence suggested in the opinions of certain people that the applicant had shown remorse. Her Honour then said whilst it may be the case the applicant was remorseful for having sexual contact with a girl he barely knew in circumstances where his "partner that night" was in an adjoining granny flat, she was unable "to make a positive finding that he is in fact remorseful for committing sexual offences against [MG] without her consent". 23. The judge found, notwithstanding that finding, that the offences were an aberration, out of character and "occurred in circumstances where, because of his use of cocaine that evening that affected his judgment". 24. Other findings that the judge made were that the applicant was unlikely to re-offend and had reasonable prospects of rehabilitation. 25. The judge noted that the applicant's parents lived in Victoria and suffered various degrees of ill health. Her Honour accepted that would make the applicant's time in custody harder for him. 26. The judge stated that general deterrence was an important consideration in sentencing for the present type of offences. When referring to specific deterrence, her Honour did not consider there was any real or particular need for specific deterrence, other than could be addressed by the imposition of the sentence. 27. Her Honour announced her intention to impose an aggregate sentence and considered issues of accumulation, concurrence and totality for the sentence. Whilst accepting that the applicant's offending could have stopped at count 1, her Honour found that the three offences were in fact one criminal episode and only slight accumulation was warranted. 28. Her Honour found special circumstances, being the applicant's age, his first time in custody, the distance from his family, the health of his parents and that he remains drug free upon release. 29. After indicating the sentences that would have been imposed, the judge imposed the aggregate sentence: see [2]-[3] above. Ground 1: Her Honour erred in her assessment of the objective criminality with respect to Count 1 and elevated the indicative sentence which informs the aggregate sentence 1. The applicant referred to the circumstance of aggravation for count 1 being "knowing that persons were inside the home" and that the particular act of sexual intercourse was fellatio which lasted only "a couple of seconds". The applicant pointed out that there was an absence of force, violence, threat or intimidation. 2. The applicant submitted that the offence lay well below the mid-range given the various assessments of the component parts of the offence. 3. In oral submissions, Ms Kluss, the applicant's counsel, argued that the objective criminality of the offence "making up count 1 was low range and even considering the nature of the sexual assault [was] … less than mid-range ... given the variety of circumstances with which a sexual assault can be considered." 4. The Crown submitted that the absence of aggravating features is not a matter of mitigation. Furthermore, there was no hierarchy of seriousness of different types of acts of sexual intercourse which inform a finding of objective seriousness. The Crown argued that it is the whole of the circumstances in which the offence was committed that inform the assessment of objective seriousness. 5. Ms Kluss accepted that the lack of more serious objective factors did not amount to mitigation but pointed to the fact that what might normally be anticipated in such offending was not present and was relevant to the assessment of the objective seriousness of the offence. Consideration 1. The assessment of the objective seriousness of an offence "is quintessentially for the sentencing judge". [1] This Court has been "very slow" to determine such matters for itself or to set aside such an assessment made by a sentencing judge. [2] As Hoeben CJ at CL observed in Field v R [2020] NSWCCA 105 at [51]: "The difficulties in intervening in such a determination are at their height in circumstances where there has been a trial in which the sentencing judge has been able to assess the evidence of the witnesses." 1. The judge characterised the offence as falling "around or perhaps just under the middle range for an offence of its type considered objectively". The question is whether that finding was open on the evidence. 2. The terms of count 1 of which the applicant had been found guilty were that the applicant "did break and enter the dwelling house of [MG]" and then in the house "did commit a serious indictable offence, namely sexual intercourse without consent, in circumstances of aggravation, namely, knowing that there was a person or persons present in the said dwelling house". 3. It is trite to observe that there is no gradation of the six circumstances of aggravation defined in s 105A of the Crimes Act. [3] Furthermore, there is no hierarchy of sexual acts that constitute sexual intercourse. [4] 4. When sentencing for an offence under s 112(2) of the Crimes Act, this Court has stated on previous occasions that the assessment of the objective gravity of the offence is to be made by reference to all the facts and circumstances of the case. [5] The focus of the sentencing judge is to be on what the offender actually did and not on some hypothetical scale of objective seriousness of either the circumstances of aggravation or the act of sexual intercourse. 5. What then did the applicant do in committing the offence? 6. In the early hours of the morning, the applicant opened MG's room having broken into the house by climbing onto the roof and entering through a closed but unlocked window. The judge accepted that the applicant had an interest to get back into the home to retrieve his mobile phone and was unable to be satisfied that he planned to sexually assault MG when he broke and entered the house. However, he decided to engage in sexual activity with MG after entering her bedroom, then removing his clothes and forcing his penis into her mouth whilst she was asleep in her bed. He told MG to "suck it" after she woke and his penis remained in her mouth. 7. As the judge found, the applicant was in effect a stranger to MG who had not engaged in any behaviour that could have led him to believe that any sexual activity would be consensual. Furthermore, MG was asleep at the time when she was sexually assaulted in this way. The applicant also had some idea that MG was either intoxicated and/or tired when Ms M found her asleep on the toilet and took her upstairs. 8. Although the offence was of short duration, the introduction of the applicant's penis into the mouth of a sleeping woman was a serious sexual assault. As her Honour said, this was a "particularly intimate act of fellatio". The absence of force, violence or threat of intimidation did not mitigate the objective seriousness of the offence, as MG was asleep at the time. 9. In my view, it was open to the judge to find that the objective seriousness of the offence was "around or perhaps just under" the middle of the range and no error has been demonstrated. 10. I would dismiss this ground of appeal. Ground 2: Her Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to discern) and the sentence is manifestly excessive 1. The applicant further submitted that if the judge's assessment of the objective gravity of count 1 was accepted the resultant sentence remained manifestly excessive. The applicant acknowledged that sentencing statistics were not provided to the judge, however, provided sentencing statistics for an offence contrary to s 112(2) of the Crimes Act to this Court. The applicant contended that even with an adjustment for an assumed maximum utilitarian discount, the statistics demonstrated that the applicant's sentence sits at the top of the range despite her Honour's objective assessment of the offending. 2. Ms Kluss told this Court in oral submissions that no issue was taken with the marginal accumulation attributed by the judge to the third and fourth counts. The applicant's focus, Ms Kluss said, was on count 1 which rendered the aggregate sentence manifestly excessive. 3. The applicant contended that the unusual circumstances of the offences and the applicant's strong subjective case "boded for a lower indicative sentence and consequently a lower aggregate sentence". 4. The Crown submitted that the applicant's focus on statistics for count 1 was misconceived as an aggregate sentence was imposed. The Crown argued that the indicative sentences announced by the judge in respect of each count were not themselves excessive. Furthermore, the judge paid proper regard to the importance of general deterrence and to the applicant's subjective case. The Crown pointed out that the judge's findings concerning totality had not been challenged and there was a large degree of concurrency in the aggregate sentence. 5. Another matter that the Crown raised was the significant reduction in the statutory ratio as the overall non-parole period was 59% of the overall term of the aggregate sentence. Consideration 1. This Court has often stated that to succeed on a ground where a complaint of manifest excess is made, the applicant must establish that the sentence was unreasonable or plainly unjust. [6] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. [7] It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles. [8] 2. The applicant's argument of manifest excess is founded upon the submission that the judge's indicative sentence for count 1 was manifestly excessive which resulted in the aggregate sentence being manifestly excessive. 3. The applicant does not challenge the judge's assessment of the objective seriousness of counts 3 and 4 or her Honour's findings on his subjective case. 4. The challenge to the indicative sentence for count 1 was mainly based on JIRS sentencing statistics for offences under s 112(2) of the Crimes Act. The limitations on the utility of statistics are well known, but are more so in offences under s 112(2) as the offence can be committed in a variety of ways. The lack of identification of the type of serious indictable offence committed during the break and enter exacerbates this issue. Another difficulty is that the statistics do not record the aggravating feature of an offender being on conditional liberty at the time of the offending, as was the case with the applicant. 5. Further, the applicant did not refer to any specific cases contained within the statistics. Bearing in mind these substantial limitations, I note that with respect to the statistics for not guilty pleas (of which there were only two), one received the same sentence as the applicant's indicative sentence and non-parole period for the s 112(2) offence, while the other received a lesser sentence. As to the guilty pleas where a custodial sentence was imposed, even when adjusted for a 25% utilitarian discount, the indicative sentence sits within the middle of the range. 6. Count 1 is a serious offence. The maximum penalty for this offence is 20 years imprisonment with a standard non-parole period of 5 years. The judge did not err in her assessment of the objective seriousness of the offence and gave careful consideration to the applicant's subjective circumstances. 7. I am not persuaded that the indicative sentence for count 1 is manifestly excessive. 8. In any event, the assessment of an indicative sentence as being excessive does not mean that the aggregate sentence is excessive. [9] As was said by R A Hulme J in JM at [40]: "[the] principal focus of determination of a ground alleging manifest … excess will be whether the aggregate sentence reflects the totality of the criminality involved." 1. In my opinion, the aggregate head sentence appropriately reflects the totality of the applicant's offending and his subjective case. There was a modest accumulation of the sentences for counts 3 and 4 and a finding of special circumstances which resulted in a non-parole period of 59%. 2. The ultimate constraint on a finding of special circumstances is that the aggregate non-parole period must appropriately reflect the criminality involved in the offences. [10] I am of the view that the non-parole period of three years and three months is the minimum period that the applicant should spend in custody. 3. I have concluded that the aggregate sentence is not manifestly excessive. I would dismiss this ground of appeal. Orders 1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. 1. N ADAMS J: I have had the advantage of reading in draft the judgment of Price J. I agree with the orders proposed for the reasons provided by his Honour. Count 1 was committed in the context that the applicant had gone home with the victim's flatmate and found the victim asleep on the toilet whilst intoxicated. The victim had to be taken to bed by her flatmate. Hours later, whilst the victim was asleep in her bed in her own house, the applicant climbed onto her roof, entered her bedroom through her closed but unlocked bedroom window and she awoke to find his penis in her mouth. The fact that he did not enter the premises to sexually assault her does not mean that this was not a serious example of an offence contrary to s 112(2) of the Crimes Act 1900 (NSW). No error is disclosed in the sentencing judge's assessment of the objective criminality. Nor could the aggregate sentence imposed be considered unreasonable or plainly unjust. ********** Endnotes 1. Mulato v R [2006] NSWCCA 282 at [46] ("Mulato"); Lees v R [2019] NSWCCA 65 at [55] ("Lees"). 2. Mulato at [37]; Lees at [55]. 3. R v Hunyh [2005] NSWCCA 220 at [29] (Simpson J) ("Hunyh"). 4. Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46; 61 ALJR 525; 74 ALR 1; 27 A Crim R 465; R v PGM [2008] NSWCCA 172; 187 A Crim R 152. 5. Hunyh. 6. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; 79 ALJR 1048; 215 ALR 213 at [25] ("Markarian"); Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; 85 ALJR 195; 272 ALR 465; 204 A Crim R 434 at [59]. 7. Markarian at [27]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2; 88 ALJR 372; 305 ALR 323; 236 A Crim R 116 at [34]. 8. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; 76 ALJR 79; 185 ALR 233 at [58]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; 350 ALR 103 at [443]. 9. JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40] ("JM") citing PD v R [2012] NSWCCA 244 at [44]; BJS v R [2013] NSWCCA 123; 231 A Crim R 537 at [252]-[254]. 10. R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534; 126 A Crim R 525 at [63]. Amendments 15 September 2020 - Footnote citation amendment [83] 16 September 2020 - Respondent counsel appearance corrected 16 September 2020 - Footnote 10 citation amendment DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2020