New South Wales Court of Criminal Appeal CITATION: WHILEY v R [2010] NSWCCA 53 HEARING DATE(S): 26 March 2010 JUDGMENT DATE: 23 April 2010 JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Rothman J at 76 1. Leave to appeal against the sentences imposed by Judge Bennett on 9 December 2008 granted. DECISION: 2. Appeal against those sentences allowed. 3. In lieu thereof, sentence the applicant for each offence to a non-parole period of nine months commencing on 25 May 2008 and expiring on 24 February 2009 and a balance of the term of three months commencing on 25 February 2009 and expiring on 24 May 2009. Unless there is some reason, other than the applicant's commission of these offences, for holding the applicant in prison, the applicant is entitled to be released immediately. CATCHWORDS: CRIMINAL LAW — Sentencing — producing child pornography — level of objective seriousness of offence — not produced for distribution — no exploitation or victimisation of any actual child Crimes (Sentencing Procedure) Act LEGISLATION CITED: Crimes Act Customs Act R v Gent (2005) 162 A Crim R 29 R v McNaughton (2006) 66 NSWLR 566 CASES CITED : R v Paintings, Drawings and Photographic Slides, April 20 1995 R v Stroempl (1995) Can L112283 (Ontario Court of Appeal) Saddler v R [2009] NSWCCA 83 PARTIES: Grant Neville Whiley - Appellant The Crown FILE NUMBER(S): CCA 2008/4165 COUNSEL: R Wilson - Appellant M M Cinque - Crown SOLICITORS: S O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/4165 LOWER COURT JUDICIAL OFFICER: Bennett DCJ LOWER COURT DATE OF DECISION: 9 December 2008 IN THE COURT OF CRIMINAL APPEAL 2008/4165 McCLELLAN CJ at CL JAMES J ROTHMAN J 23 APRIL 2010 WHILEY, Grant Neville v R Judgment 1 McCLELLAN CJ at CL: I agree with James J. 2 JAMES J: Grant Neville Whiley applied for leave to appeal against sentences imposed on him in the District Court on 9 December 2008 by his Honour Judge Bennett for two offences of producing child pornography. 3 The applicant had stood trial on charges of the two offences at a judge-alone trial conducted by Judge Bennett. At the conclusion of the trial his Honour found the applicant guilty of both offences. 4 For each of the two offences his Honour imposed a sentence consisting of a non-parole period of three years and a balance of the term of one year, commencing on 25 May 2008, the two sentences to be served concurrently. Later in this judgment I will indicate how his Honour came to select 25 May 2008 as the date for the commencement of the sentences. 5 Child pornography is an offence under s 91H of the Crimes Act. It is convenient to refer at this stage to some of the provisions of s 91H, as in force at the time the offences were committed, on 20 June 2007. 6 Section 91H(2) provided:- "A person who produces or possesses child pornography is guilty of an offence. Maximum penalty: imprisonment for 10 years." 7 "Child pornography" was defined in s 91H(1) as meaning:- "material that depicts or describes in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years: (a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context)." 8 Under s 91H(4) it was a defence to a charge under sub-s (2):- "(c) that, having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant's conduct was reasonable for that purpose…" Facts of the offences 9 Both of the charges were based on items found by Corrective Services officers when on 20 June 2007 they searched a cell at the Goulburn Correctional Centre occupied by the applicant who was then serving sentences for other offences. 10 The first charge was based on 18 sheets of drawings made by the applicant and the second charge was based on 24 pages of handwritten text written by the applicant. The drawings and the text were described in detail in both his Honour's judgment on liability and his Honour's remarks on sentence. This Court has not itself viewed the drawings or read the text. The following, fairly brief, summary of the material is taken from his Honour's remarks on sentence. The drawings 11 On all but two of the pages there were drawings of children, apparently under the age of 16 years. On the first page there were only the words "Dr Sado's Funhouse". On the second page there was a drawing of an adult identified as "Dr Sado". On the third page there was a drawing of a dog with an exaggerated penis identified as "Demona's dog". On a number of the following pages there were drawings of a girl in her teenage years or younger, identified as "Demona". In various drawings the girl Demona was depicted, naked or partly dressed, with her genitalia clearly shown and an object inserted in, or about to penetrate, her vagina or anus. 12 There were also drawings of two other girls, who appeared to be younger than Demona, again with their genitalia clearly depicted and also with objects inserted in, or about to penetrate, their vagina or anus. In some of the drawings the two girls were shown together, performing sex acts on each other. 13 There were also drawings of a young boy of pre-teenage years, naked and with his genitalia clearly shown, holding a sex aid or with a sex aid penetrating his anus. The handwritten text 14 The first page of the handwritten text identified the characters in a television program called "The Brady Bunch", which was first broadcast in Australia in the 1970s. The Brady Bunch was a family consisting of a father and a mother, three male children and three female children. Other characters were identified, including a handyman, a gardener and a housekeeper and also the family's dog. 15 The following pages of the text described sexual encounters in various combinations between these characters, including the fondling of genitalia, fellatio, digital and penile penetration of the anus and vagina and penetration of the anus and vagina with sex aids and other objects. 16 A number of the pages contained lists of numbered points about the various encounters, including who took part, the ages of the children, the dimensions of body parts and objects used in the encounters. 17 In his remarks on sentence the sentencing judge, after summarising the drawings and the text, said:- "It is noteworthy that Wiley created this child pornography from his imagination. The images were drawn; they were not photographic. The written work was prepared upon the theme of a television program and a fantasy. He used both contexts for the stories he created. There is no evidence upon which I could find that the images were created from any photographic images or that the stories were inspired by actual experiences of Wiley or others of which he was made aware." 18 Earlier in his remarks on sentence his Honour had made a finding that the applicant produced the material for no purpose other than his own sexual gratification. The trial 19 At the trial there was no dispute that the applicant had produced both the drawings and the text and that both the drawings and the text were "child pornography" within the definition in s 91H. 20 The principal issue at the trial was whether the applicant could establish a defence under s 91H(4)(c). At the trial the applicant gave evidence that he created the material for his entry into the CUBIT (Custodial Based Intensive Treatment) program conducted within the Department of Corrective Services for the rehabilitation of sexual offenders, so as to inform the psychologists working in the program of the fantasies he was having. Judge Bennett, having held that the onus lay on an accused to establish a defence under s 91H(4), rejected the applicant's evidence about why he had created the material and held that the applicant had no defence under s 91H(4). The applicant's criminal history 21 Aspects of the applicant's criminal history are relevant to grounds in the present application for leave to appeal against sentence. 22 In his remarks on sentence Judge Bennett commented that the applicant, who was born on 30 January 1970, has an extensive criminal history, which began in the Children's Court. His Honour continued:- "Thereafter, over time, he faced multiple offences of break enter and steal, failure to appear, obtaining benefit by deception, possession of prohibited drugs, aiding and abetting, obtaining money by false pretences, self administration of prohibited drugs, making and using false instruments, contempt of court, receiving and disposing of stolen property, and driving offences. He had been dealt with also for offences of possession of equipment, the purpose of which is not made clear in the antecedent report, larceny as a bailee, possession of a firearm, possession of a prohibited weapon, supply prohibited drug, goods in custody, cultivate prohibited plant, possession of implements to administer prohibited drugs, making false statement with intent to obtain financial advantage, steal conveyance, intimidation, stalking and common assault. He has a record of drug offences in Queensland in 1993." 23 In 1998 the applicant was imprisoned for four offences of sexual intercourse with a child under 10. In 2001 he was dealt with under s 10 of the Crimes (Sentencing Procedure) Act for possession of child pornography. 24 It is necessary to examine in some detail the applicant's more recent criminal history. 25 On 14 January 2005 the applicant was taken into custody on charges of a large number of offences. In later court proceedings his custody was taken to have commenced on 12 January 2005. 26 On 11 March 2005 the applicant was sentenced for these offences in a Local Court. The offences included receiving stolen property, making false instruments with intent, using false instruments with intent, dishonestly obtaining money by deception, disposing of stolen goods, possession of child pornography (four offences), possessing a prohibited drug and failing to comply with reporting obligations. 27 The applicant appealed to the District Court against the sentences imposed on him in the Local Court. On 27 May 2005 a District Court judge confirmed the sentences which had been imposed in the Local Court, apart from slightly varying the sentences for possession of child pornography to sentences of two years with non-parole periods of 13 months 15 days. 28 The total effect of the sentences set in the District Court, which were ordered to be served with a high degree of concurrency, was head sentences totalling three years six months commencing on 12 January 2005 and expiring on 11 July 2008, with non-parole periods totalling two years seven months fifteen days commencing on 12 January 2005 and expiring on 26 August 2007. The applicant was serving non-parole periods under these sentences at the time of committing the present offences. 29 After the applicant had completed serving the non-parole periods of the sentences on 26 August 2007, he remained in custody, bail refused, on the present charges. 30 On 1 May 2008 the applicant was sentenced in the Local Court for offences of common assault and stalking with intent to cause fear. These offences had been committed in December 2004 against an adult woman with whom the applicant had been in a relationship. For the offence of stalking the applicant was sentenced to a fixed term of imprisonment of six months from 3 October 2007 to 2 April 2008. For the offence of common assault he was sentenced to a non-parole period of nine months commencing on 3 October 2007 and expiring on 2 July 2008 and a balance of the term of three months commencing on 3 July 2008 and expiring on 2 October 2008. 31 An appeal by the applicant, on which he was not legally represented, came before Judge Bennett at the same time as part of the sentence proceedings for the present offences. Judge Bennett made comments about the seriousness of the offence of assault which the applicant had committed and the applicant withdrew his appeal. 32 Accordingly, when Judge Bennett came to sentence the applicant on 9 December 2008, the applicant had been in custody solely referable to the present offences from 27 August 2007 to 2 October 2007, a period of 37 days, and from 3 July 2008 to the date of sentencing. Judge Bennett chose 25 May 2008 as the date on which the sentences passed by him would commence, after taking into account the two periods the applicant had spent in custody which were solely referable to the present offences. 33 In deciding the sentences should commence on 25 May 2008 Judge Bennett rejected a submission made on behalf of the applicant that the sentences should not be made cumulative on the sentence for the assault offence, because the assault had been committed as long before as 2004 and, if the applicant had been prosecuted "in a more timely fashion", the sentence for the assault would probably have been subsumed in other sentences imposed on the applicant. 34 In rejecting this submission Judge Bennett said:- "I do not agree with this submission. The common assault for which the sentence was imposed was objectively very serious and in my opinion fell within the category of worst-case example. The offender choked his victim to the point of unconsciousness, and thereafter wrote letters about what he had done and the extent to which he was able to apply pressure only so long as was necessary to cause loss of consciousness without the risk of asphyxiation. The sentence imposed for that offence, at least the non-parole component of it, should have been served cumulatively in my opinion, regardless of the delay in having the matter resolved." 35 Judge Bennett also rejected a submission that the sentences for the present offences should be subsumed in the sentences the applicant was serving at the time he committed the offences. Remarks on Sentence 36 Judge Bennett delivered lengthy remarks on sentence totalling 40 pages. In his remarks his Honour referred inter alia to the charges, the trial, the facts of the offences, the time which the applicant had spent in custody and the date on which the sentences to be imposed by his Honour should commence, the criminal history of the applicant, the likelihood of the applicant re-offending, a pre-sentence report, what opportunity the applicant might have for rehabilitation, the aggravating factor in s 21A(2)(d) of the Crimes (Sentencing Procedure) Act (that is, the applicant's record of previous convictions) the mitigating factor in s 21A(3)(a) (that is, that the harm, loss or damage caused by the offence was not substantial) the submissions of counsel for the parties and whether his Honour should find special circumstances. 37 I have already made references to some of these parts of his Honour's remarks on sentence. I will now refer to certain other parts which are relevant to the application for leave to appeal against sentence. 38 His Honour noted in his remarks on sentence that since 1988, when the applicant was 18, he had in 20 years of adult life spent more than 15 years in prison. There had been six periods when the applicant had been at liberty as an adult. His Honour then examined the history of the applicant's offending during these six periods. 39 With reference to the applicant's criminal history and particularly his previous convictions for child pornography, the sentencing judge, while recognising that the previous criminal history could not be used to increase the objective gravity of the offence, held that it could be taken into account as a subjective matter of aggravation. 40 With regard to whether he should find special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act his Honour said:- "With regard to special circumstances I commented that there was no evidence from which I could find that there were special circumstances requiring an adjustment in the non-parole period. The Crown invited me to consider the risk of institutionalisation faced by Wiley in light of the extended periods he had been in gaol in his adult life. The significance of that concession by the Crown will depend upon the length of the sentence to be imposed. Depending upon the overall sentence it may be that a shorter non-parole period will be required to minimise the risk of institutionalisation…" Ultimately his Honour did not make any finding that there were special circumstances. 41 In referring to the submissions of the parties in the proceedings on sentence his Honour noted that the Crown had initially submitted that the offences fell below the mid-range of objective seriousness but that the Crown had later withdrawn that submission and submitted that the offences were at or above the mid-range of objective seriousness. 42 The sentencing judge summarised some of the submissions made on behalf of the applicant as follows:- "Mr Egan submitted that there could be no finding other than the objective gravity of these offences should be seen at the lower end, well below mid range. The offender produced the material for his own use and there was no evidence of any intention of dissemination. There was no living individual used for the purposes of the preparation of the material, there were no photographs and there is no evidence that any individual or relationship inspired the images and writings apart from the resort to the television program The Brady Bunch…this offending he said was without any victims whatsoever." 43 Towards the end of his remarks on sentence the sentencing judge made a number of findings. 44 His Honour found that the applicant had shown a continuing attitude of disobedience to the law and that in these circumstances retribution, deterrence and the protection of society pointed towards a more severe penalty but within the range of sentences that were appropriate according to the objective gravity of the offences. 45 The sentencing judge accepted that there was some merit in the submissions made on behalf of the applicant that the material involved "no living child" and there was no evidence that the material was to be disseminated. However, his Honour found that what was of grave concern was the content of the material, including descriptions of the most brutal sexual abuse of children. There was, accordingly, a need for personal deterrence and protection of the community. 46 His Honour referred to some Canadian cases which had been cited to him, which he said were of "some limited assistance", particularly R v Stroempl (1995) Can L112283 (Ontario Court of Appeal). His Honour also referred to a decision of this Court in R v Gent (2005) 162 A Crim R 29. 47 His Honour concluded that the objective gravity of the offences "falls somewhere below the middle range", without any further specification. The grounds of appeal 48 The original grounds of appeal relied on by the applicant were:- 1. His Honour failed to properly have regard to the principle of totality. 2. His Honour erred in failing to find special circumstances. 49 Shortly before the hearing of the application notice was given that the applicant intended to rely on a third ground of appeal:- 3. His Honour erred by taking into account evidence which was not before him in the proceedings, namely the Crown bundle tendered during the course of an unrelated severity appeal. 50 This intended ground of appeal was based on his Honour's having had regard, in the sentencing of the applicant for the present offences, to documents tendered for the purpose of the applicant's appeal against the severity of the sentence imposed on him for the offence of assault. 51 Neither the original grounds of appeal nor the intended third ground of appeal raised a ground of appeal asserting that the sentences were manifestly excessive. At the hearing the Court raised with counsel for the applicant the question of whether such a ground of appeal should be raised. Counsel for the applicant then applied for leave to add a ground of appeal that the sentences were manifestly excessive, as well as for leave to add the third ground of appeal, and leave was granted to the applicant to raise both of the additional grounds. 52 It is convenient to deal immediately with the ground of appeal that the sentences were manifestly excessive. If this Court decides that the sentences were manifestly excessive, then it will have to re-sentence the applicant and in re-sentencing the applicant the Court, to the extent to which it might be necessary, will have to have regard to considerations of totality and also determine whether it should find special circumstances. If this Court re-sentences, the alleged error made by his Honour referred in the third ground of appeal would become academic. Were the sentences manifestly excessive 53 As leave to file this ground of appeal was applied for, and granted, only on the hearing of the application, the parties were directed by the Court to file supplementary written submissions, directed to this ground. 54 In his written submissions counsel for the applicant in effect repeated the submissions which had been made on behalf of the applicant in the sentence proceedings and referred to the decisions of this Court in Gent and Saddler v R [2009] NSWCCA 83 and to other New South Wales decisions and to the Canadian decision of Stroempl. 55 In her written submissions counsel for the Crown made a concession that the applicant's offences "were more appropriately classified as being low range" and not, as the sentencing judge had found, "somewhere below the middle range". However, counsel for the Crown referred to Stroempl and to the applicant's criminal history and continued to submit that the appeal against sentence should be dismissed. 56 In Gent, in which the applicant's offence was importation of child pornography under a section of the Customs Act since repealed, Johnson J, with whose judgment the other members of the Court agreed, after conducting a survey of a number of cases, said at 49 [99]:- "…a range of factors bear upon the objective seriousness of an offence of possession or importation of child pornography. These factors include: (a) the nature and content of the pornographic material — including the age of the children and the gravity of the sexual activity portrayed; (b) the number of images or items of material possessed by the offender; (c) whether the possession or importation is for the purpose of sale or further distribution; (d) whether the offender will profit from the offence. It might be worth noting, however, that the number of images as such may not be the real point. In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised." 57 In my opinion, the factors identified by Johnson J in Gent are also applicable to offences of producing child pornography. 58 In Saddler, in which the offences were offences of possessing child pornography contrary to s 91H(3) of the Crimes Act, Buddin J, with whose judgment the other members of the Court agreed, after quoting par 99 of Johnson J's judgment in Gent, said at [22]:- "The English Court of Appeal issued a guideline judgment in respect of child pornography in R v Oliver, Hartrey and Baldwin [2003] 1 Cr App R 28. In that case Lord Rose, who delivered the judgment of the court, said: There are specific factors which are capable of aggravating the seriousness of a particular offence. We identify these as follows: (i) If the images have been shown or distributed to a child. (ii) If there are a large number of images. It is impossible to specify precision as to numbers. Sentencers must make their own assessment of whether the numbers are small or large … (iii) The way in which a collection of images is organised on a computer may indicate a more or less sophisticated approach on the part of the offender to trading, or a higher level of personal interest in the material. An offence will be less serious if images have been viewed but not stored. (iv) Images posted on a public area of the internet, or distributed in a way making it more likely they will be found accidentally by computer users not looking for pornographic material, will aggravate the seriousness of the offence. (v) The offence will be aggravated if the offender was responsible for the original production of the images, particularly if the child or children involved were members of the offender's own family, or were drawn from particularly vulnerable groups, such as those who have left or have been taken from their home or normal environment, whether for the purposes of exploitation or otherwise, or if the offender has abused a position of trust, as in the case of a teacher, friend of the family, social worker, or youth group leader. (vi) The age of the children involved may be an aggravating feature. In many cases it will be difficult to quantify the effect of age by reference to the impact on the child. But in some cases that impact may be apparent. For example, assaults on babies or very young children attract particular repugnance and may, by the conduct depicted in the image, indicate the likelihood of physical injury to the private parts of the victim. Some conduct may manifestly (that is to say, apparently from the image) have induced fear or distress in the victim, and some conduct which might not cause fear or distress to an adolescent child, might cause fear or distress to a child of, say, 6 or 7. (at 20)." 59 In his judgment in Saddler Buddin J summarised a number of District Court cases in which sentences had been imposed for possessing child pornography. 60 In the present case it is clear that the contents of both the drawings and the text were grossly pornographic. It is also clear that the applicant produced, and did not merely possess, the child pornography. 61 However, the number of drawings and the quantity of the text were much less than the number or quantity of the pornographic items in Gent, Saddler and the District Court cases summarised by Buddin J in Saddler, in which there were hundreds or thousands or even tens of thousands of pornographic items. 62 In the present case, although the applicant produced the child pornography, the applicant did not produce either the drawings or the text for the purpose of sale or other distribution. The sentencing judge made a finding that the applicant produced the drawings and text solely for his own gratification. There was, of course, no suggestion that the applicant intended placing any of the material in a computer or on the Internet. 63 What is particularly important in the present case is the sentencing judge's findings, which I quoted earlier in this judgment, that the images (which were drawings and not photographs) and the handwritten text were created by the applicant from his own imagination and that there was no evidence on which the sentencing judge could find that the images were created from any photographic images of actual children or that the stories in the text were inspired by actual experiences of the applicant or other persons. The present applicant's offences did not involve the exploitation or victimisation of any actual child. 64 The present case can be contrasted with other New South Wales cases to which the Court was referred, which involved possession of large numbers of photographic images or films of many actual children being subjected to sexual activities, torture or other physical abuse. 65 I am conscious that s 91G of the Crimes Act creates a separate offence of using children for pornographic purposes. However, there could be many offences within s 91H which would involve, at least indirectly, the exploitation or victimisation of actual children, without amounting to an offence under s 91G of the offender using a child for pornographic purposes. 66 Both the sentencing judge and counsel in their submissions referred to the Canadian case of Stroempl and Stroempl has been referred to in other New South Wales cases. 67 The offence in Stroempl was possessing child pornography. The quantity of child pornography in the possession of the offender in the form of magazines, photographs, pamphlets and drawings greatly exceeded the quantity of child pornography produced by the present applicant. Stroempl's subjective features were much more favourable than the applicant's. On an appeal against sentence the Court of Appeal for Ontario reduced a sentence of imprisonment from 18 month to 10 months. 68 Stroempl seems to have been referred to in New South Wales cases, mainly because of the quotation in it of a part of a judgment by McCombs J of the Ontario Court (General Division) in R v Paintings, Drawings and Photographic Slides, April 20 1995. McCombs J said:- "The evil of child pornography lies not only in the fact that actual children are often used in its production, but also in the use of which it is put. Although behavioural scientists disagree about the reliability of scientific studies, there is general agreement among clinicians that some paedophiles use child pornography in ways that put children at risk. It is used to "reinforce cognitive distortions" (by rationalising paedophilia as a normal sexual preference); to fuel their sexual fantasies (for example, through masturbation); and to "groom" children by showing it to them in order to promote discussion of sexual matters and thereby persuade them that such activity is normal." 69 In the present case actual children were not used in the production of the child pornography and there was no evidence that the applicant used the pornography in any of the ways described. 70 Both the sentencing judge and counsel for the Crown referred to the applicant's previous criminal history, which included previous offences of child sexual assault and child pornography. However, as was decided by the Court of Criminal Appeal in R v McNaughton (2006) 66 NSWLR 566, the upper boundary of a sentence is set by the objective circumstances of the offence, which do not include previous convictions of the offender and previous convictions are only relevant to the question of where, within the boundary set by the objective circumstances, the sentence should lie. 71 In my opinion, having regard to the matters I have mentioned and notwithstanding the caution which this Court exercises in deciding whether to interfere with a sentencing judge's assessment of the level of objective seriousness of an offence, the sentencing judge did err in finding that the objective gravity of the offences fell "somewhere below the middle range". His Honour should have found that the offences fell near the bottom of the range. 72 It follows that the sentences imposed by the sentencing judge were manifestly excessive and that this Court is required to re-sentence the applicant. Having regard to what I have found to be the level of objective criminality in the offences and after taking into account the absence, or virtual absence, of any favourable subjective features, I consider that head sentences of 12 months, to be served concurrently, would be appropriate. I would not order the sentences to commence any later than 25 May 2008, which was the date of commencement of the sentences imposed by the sentencing judge. Accordingly, the applicant will have already completed serving the head sentences. 73 In the circumstances, considerations of totality and the division of the sentences between a non-parole period and a balance of the term become academic. I would simply divide the head sentences into a non-parole period of nine months and a balance of the term of three months. 74 In my opinion, the following orders should be made:- 1. Leave to appeal against the sentences imposed by Judge Bennett on 9 December 2008 granted. 2. Appeal against those sentences allowed. 3. In lieu thereof, sentence the applicant for each offence to a non-parole period of nine months commencing on 25 May 2008 and expiring on 24 February 2009 and a balance of the term of three months commencing on 25 February 2009 and expiring on 24 May 2009. 75 Unless there is some reason, other than the applicant's commission of these offences, for holding the applicant in prison, the applicant is entitled to be released immediately. 76 ROTHMAN J: I agree with James J. ********** 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.