Moustafa TAHA v R [2011] NSWCCA 137

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Moustafa TAHA v R [2011] NSWCCA 137 Hearing dates: 10 February 2011 Decision date: 06 July 2011 Before: Giles JA at [1] R S Hulme J at [2] Adams J at [6] Decision: Leave to appeal granted but appeal dismissed. Catchwords: CRIMINAL LAW - Appeal against sentence - appeal dismissed - robbery and subsequent offences demand property with menaces against same victim - form 1 offences taken into account - plea of guilty on first day of trial - utilitarian discount of 10% appropriate -sentencing judge did not err in referring to threat of use of weapon by offender as an aggravating feature - sexual abuse as a child not a distinct class of mitigation. Legislation Cited: Crimes (Sentencing and Procedure) Act 1999 Cases Cited: R v Way [2004] NSWCCA 131 Category: Principal judgment Parties: Moustafa Taha (Applicant) Regina (Respondent) Representation: Counsel P Hamill (Applicant) V Lydiard (Respondent) Solicitors Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/138409 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-05-27 00:00:00 Before: Syme DCJ File Number(s): 2009/138409

Judgment 1GILES JA : I agree with Adams J. 2R S HULME J : In this matter I have had the advantage of reading the reasons for Judgment of Adams J. I agree with the orders proposed by his Honour and, subject to the following remarks, with his Honour's reasons. 3Given the terms used, I am unsure whether the sentencing Judge did double count when he said "it is the threat that the Court is taking into account as the aggravating feature". However, I am satisfied that if double counting occurred no undue weight was placed on the combination of the robbery and threat occasioned by the Applicant's remark "get inside, I have a gun". 4Accordingly, I do not find it necessary to embark upon what, in the circumstances of this case, I see as a barren argument as to whether the threat went beyond the fear that was a minimum ingredient in the offence of robbery. 5Even had I been persuaded that there was error on the part of the sentencing Judge, I would still have been in favour of dismissing the appeal. The Applicant's premeditated offending, accompanied by at least implicit threats of violence and even death, meant that no lesser sentence should have been imposed. 6ADAMS J : Introduction 7The applicant seeks leave to appeal from sentences imposed on 27 May 2010 in the District Court in respect of offences of robbery committed on 1 December 2008 and demanding property with menaces committed on 14 December 2008. He also asked to be taken into account on a Form 1 the offences of stealing from a dwelling house, obtaining money by deception and possessing a prohibited drug. Except for the last of these offences, they were committed against the same victim. In respect of the first offence, taking into account the matters on the Form 1, a non-parole period of 3 years to commence on 25 February 2010 was imposed with an additional term of 2 years and 4 months. In respect of count 2 the applicant was sentenced to a non-parole period of 2 years commencing on 25 August 2009 and an additional term of 1 year and 7 months. The effective total sentence was 5 years and 10 months commencing 25 August 2009 with a non-parole period of 3 years and 6 months. 8The applicant pleaded guilty on the first day of his trial and the sentencing judge gave him a ten percent discount for this plea. 9The applicant relies on the following grounds of appeal - (i) the sentencing judge erred in her approach to the applicant's plea of guilty by taking into account the strength of the Crown case when considering the utilitarian value of the plea; (ii) the sentencing judge erred in taking into account as an aggravating factor a matter which was implicit in, or an element of, the offence and (iii) the sentencing judge erred in falling to take into account as a mitigating feature the fact that the applicant had himself been sexually assaulted at a young age. The facts 10The facts as found by the sentencing judge were contained in a statement of facts agreed to by both parties. The following account, which I understand to be non-controversial, is taken from this statement. Her Honour's reasons did not refer to all the relevant details, perhaps for privacy reasons but, having regard to the contentions of the applicant in this Court, it is necessary to refer to the agreed facts in somewhat more detail. 11In the early morning of 30 November 2008 the applicant entered the Oxford Hotel in Oxford Street, Darlinghurst. He and the victim got into conversation. About half an hour later, they left the bar upon being informed that it was closing and arranged to go together to the victim's unit. When they arrived, the applicant asked the victim to shut the curtains, which he did. The victim then said to the offender, "What do you want out of this?" referring to sex, the applicant answering, "We'll see what happens". They discussed watching a DVD. (It was no part of the Crown case that, as it happened, the applicant is homosexual but, in all events, this is immaterial.) The applicant sat on the lounge while the victim went into his bedroom to change his clothes, throwing his keys and wallet on the floor in the bedroom near the end of the bed. He then went to get a beer from the fridge. The applicant then entered his bedroom, found the victim's mobile telephone in the sock drawer and picked up the victim's house keys and wallet from the floor. It is clear that, at this point, the victim was unaware of the applicant's actions. They engaged in conversation, at one point the victim placing his hands on the applicant's shoulder. The applicant said, "Take it slow, take it easy, maybe you can give me a massage later". He then took notes from the victim's wallet, counted them and asked, "So how much cash have you got?" He replaced the money. A short time later he told the victim he had received a phone call from a friend who had arrived in the area and was leaving. He did so. 12Unknown to the victim, when the applicant left the apartment, he was in possession of the victim's house keys, mobile phone and $800 in cash, which he had removed from the wallet. A few minutes after he left, the victim realised that something was wrong, for he could not find his house keys. He found his emptied wallet and then discovered that his mobile phone had been stolen. He telephoned his number to speak to the applicant but was unsuccessful. He went to sleep and, waking about noon, started an exchange of text messages with the applicant. In substance the victim asked the applicant to return his keys or the police would be contacted. The applicant responded by promising to return the keys and, in effect, saying that he would claim that the victim had given them to him and forgotten about it. He denied taking any cash. The exchange ended with the victim promising to pay $300 to the applicant to return the phone and the keys. The applicant's conduct constituted the offences in the Form 1. 13At about 3.00am on 1 December 2008 the applicant gained access to the victim's building and called the victim saying that he was outside, knocking on the door a number of times. The victim opened the door and the applicant moved into the doorway, pointed to his jacket pocket and said, "Get inside I have a gun". The victim stepped back. The applicant pushed through the door which was then closed. He demanded that the victim hand over his credit cards. The victim did so and the applicant then demanded that he provide his PIN, telling the victim that, if it worked, he would get his keys and phone back. The applicant continued to make threats and the victim provided his PIN to him. The applicant said, "I have a mate outside, I'm gonna give him the PIN and if it doesn't work I'll know within 10 minutes". He added, "If you go to the cops, me and my mates and there's a guy out the front door, all know where you live and will be back". The victim then opened the door and handed the two credit cards to the applicant's co-offender. Shortly afterwards the victim contacted the credit card providers and reported his cards were stolen. As it happened, a little over half an hour after he did so, attempts to use one of the cards were made but the transactions were declined. In the meantime, the victim sent a message to his mobile phone asking the applicant to return his keys and phone by leaving them outside the door or in the letterbox, saying that he would not open the door again. These were the facts giving rise to the first count of the indictment. The facts in relation to the offence of obtaining money by deception which was on the Form 1 arise from the applicant's use of the victim's debit card to withdraw $1000, $500 and a further $500 from ATMs prior to the victim reporting the theft of his card. 14At 11.35pm on 7 December 2008 the intercom to the victim's unit was buzzed. The victim did not answer it but, within a couple of minutes, he saw the applicant through the peephole in his door. He telephoned police and, whilst he was on the phone, heard knocking on the door. He returned to the door and heard the applicant say something like "He's not here" or "He's not answering". Police attended about five minutes later but the applicant had gone. About three hours later, at 2.30am on 8 December, the victim heard knocking at his door and again telephoned police. There was a smashing sound and, when police arrived, they found the bathroom window was smashed, apparently with a brass bolt. At 1.22 am on 13 December 2008 the victim was called by the applicant who asked him, "Is that Brad?" to which the victim said "Yes". The applicant said, "I found a set of keys about a week ago at the Oxford, your name and number is on the key ring". The victim said, "Who is this?" The applicant said, "I am a bar tender at the Oxford, I found the keys about a week ago" and gave a false name. (The victim's mobile number and name was recorded on his set of keys.) The victim, who recognized the applicant's voice, told him to take the keys to the Kings Cross Police Station. A few minutes later the applicant was called again but did not answer. 15The facts in relation to count 2 on the indictment are as follows. At 1.26am on 14 December 2008 the victim received a further call from the applicant who said, "If you want the keys, come to the bar". The victim asked him which bar and the applicant said, "The Oxford". About 30 minutes later, the victim received a further call but it was answered by a friend. Two other calls were made three hours or so later but the victim did not answer. About 15 minutes after the last of these calls, the applicant again telephoned the offender and told him to come out to the car park because he wanted to apologise. When the victim refused, the applicant said, "I'll put a bullet through your head and you'll regret it the rest of your life. The boys know where you live and can break into your apartment and will put a bullet through your head". The victim asked why the applicant was targeting him and what it would take to get him out of his life. The applicant said that it would take $1000. The victim suggested that they meet shortly afterwards at a caf in Darlinghurst Road, Kings Cross. The applicant agreed and the victim then contacted the police. The applicant made three further calls about 15 minutes apart to the offender and told him what he would be wearing. The victim did not attend the meeting but, of course, police did. No attempt to arrest the applicant was made at this time. He was simply observed. Fifteen minutes after the agreed time for the meeting, the applicant telephoned the victim to ask him why the police were at the cafe and the victim explained that, it being Kings Cross, the police were "always around". Over the next 15 minutes the applicant made eleven further calls to the victim but he did not answer. The applicant left a message on the twelfth call warning the victim about "silent treatment" and saying that he had "pushed the button hard now". A couple of days later, when the victim returned to his unit with police, on being warned by a neighbour that his burglar alarm had been triggered two days before, he saw jemmy marks near the lock of his front door. 16Following telephone intercepts that were obtained about a month or so later, the applicant was arrested at his premises on 25 February 2009. On the search of his premises police located cannabis in a resealable bag, the total weight of which was .84 grams. 17The applicant told police that he had met the victim at the Oxford Hotel and had gone back to his unit on his invitation. He said that the victim had made a number of sexual advances but the applicant told him that he was not gay. He falsely claimed that the victim gave his mobile phone and keys to the applicant as part of an agreement to purchase cocaine for him. He said that, when he returned to the victim's unit on 1 December, he assaulted the victim because he made further sexual advances and that the victim gave him his credit card and PIN so that he would stop assaulting him. He claimed that he threw away the credit card but also stated that he went to the ATM with an associate whom he named who withdrew $2000 and gave him $1000. The evidence on sentence 18Tendered on the applicant's behalf at the sentencing proceeding was the report of Mr Borenstein, a clinical psychologist. The account given by the applicant to Mr Borenstein of the circumstances of the offence was that he met the victim at the Oxford Hotel and that the latter suggested the two return to his home where the victim "allegedly made sexual advances towards Mr Taha and touched his shoulders which made him feel uncomfortable". The report continues - At this point of the interview, Mr Taha said he was sexually abused when aged about 11, and the complainant's actions towards him reactivated the memory of the abuse. Mr Taha responded defensively, "I just went off". Mr Taha realised the complainant was fearful. The complainant provided Mr Taha his key card and pin, "I took $2000, I just wanted to harm him". 19It is clear from this account that the applicant, aside from having lied to the police, also lied to the psychologist about what had happened. In no sense did he lose his self-control as a result of advances made by the victim. Mr Borenstein noted also that the applicant "denies any premeditation with regards to the behaviour which brings him before the Court". The agreed facts make it clear that the applicant anticipated at least that some kind of sexual activity would occur, as is shown by his request to close the curtains of the unit as soon as he entered. He said nothing to Mr Borenstein about the theft of the victim's house keys, telephone or cash. Nor did he tell him of the campaign of threats, in particular, the circumstances in which the victim was induced to hand over his credit cards and PIN. The course of his conduct was nothing more than a coldly calculated process of opportunistic theft and premeditated extortion. At no point did the applicant express any remorse either to the psychologist or to the sentencing judge for his conduct. 20The applicant, who gave evidence at the sentence proceeding, deposed that the contents of Mr Borenstein's report were true. It is clear that what the applicant told Mr Borenstein about the circumstances of the offence cannot be reconciled with the agreed facts. Counsel for the Crown was remiss in his duty in failing to cross-examine on the inconsistency. Regrettably, this lackadaisical approach seems to be adopted all too often, so that judges are not given the assistance which it is the duty of counsel for the Crown to provide. 21The applicant's case was essentially that he responded to the victim as he did because of what the psychologist described as his "history of sexual abuse and activation of dormant PTSD ... [and] sought revenge against the complainant, partly consequent to cumulative rage, the result of his initial sexual abuse never being resolved". 22In my opinion, the link found by the psychologist between the claimed sexual abuse and the criminal behaviour of the applicant, based as it is upon the naive acceptance of the history given to him by the applicant - despite his having been provided with the agreed facts - renders his opinion of slight, if any, utility. 23The report from the Parramatta Parole Unit describes the applicant's attitude to the offence as follows - "Mr Taha's attitude to the offence appeared to be one of indifference. He demonstrated little insight into the suffering of the victim whom he appeared to blame for his current predicament. ... Mr Taha displayed a lack of insight into his offending behaviour and he demonstrated no victim empathy". 24Dealing with this issue, the learned sentencing judge said - "With respect to the issue of remorse, the offender ... gave evidence. Remorse is something that can be taken into account by the Court if the offender has provided evidence that he has accepted responsibility for his actions and he certainly did that by his plea of guilty. It can also be taken into account if the offender has made reparation for damage and or acknowledged any injury or loss. The offender feels sorry for himself. He acknowledges the hurt that his actions have caused his family. On his own evidence, and on the reports I have read, he has given no thought to the effect of his criminal and offensive behaviour ... on the complainant and apparently justifying his actions as a distorted measure of self-protection". 25The sentencing judge referred to what she described as "text messages" (I think in fact a reference to the text of the intercepted telephone calls between the applicant and his friends) which were stated by her Honour to "give the Court some insight and concern as to the offender's motives and outward aggression and his need to justify his behaviour, both to his father and to his friends". Her Honour's conclusion that the facts did not support a finding of remorse was inevitable. 26The evidence in relation to the so-called sexual abuse was somewhat exiguous. The following is contained in Mr Borenstein's report - "Mr Taha spoke of being sexually abused in year seven of high school. As part of his increased freedom he discovered girls. He formed an attraction to a young girl, who suggested they truant together, "I took the challenge". They were part of a group of about ten and went to the City .... Mr Taha recalls going down a side street to urinate, "a man came up and asked me what I was doing, he grabbed my penis and started rubbing it". Mr Taha was tearful and clearly agitated in recounting this event during interview. He required some time to compose himself and appeared embarrassed, "I was scared, I ran away", Mr Taha told his father of what happened, "He bashed me, he reckoned it was my fault, he punched me for truanting". Mr Taha became more rebellious, with increased truanting and non-attendance. He was asked to leave school in year nine, as he barely attended, at which time he commenced work almost immediately. Following the sexual abuse, Mr Taha suffered symptoms of post traumatic stress, in particular frequent nightmares, vigilance, fear, tearfulness and cued response to the abuse, "If anyone came to touch me I'd get angry, my own uncle would come near me to give me a hug, I'd just run away". Such behaviour was in marked contrast to Mr Taha's behaviour prior to being sexually abused, "I couldn't even play touch football anymore, I couldn't let anyone touch me, later on even my own wife, if she touches me I yell, I have to be in control. Mr Taha says he is highly sensitised to being touched and reacts accordingly to any physical or boundary intrusion to which he is not compliant or in agreement with". 27Several comments should be made in relation to this evidence. First, the applicant's account of sensitivity or reaction to a physical approach or touching is completely at odds with the agreed facts. Secondly, there is no corroboration of the applicant's account about the consequences of what he claimed to have happened to him. Thirdly, the psychologist did not test this account either by raising the agreed facts with him or by adverting to those facts in his report. Finally, even if the applicant suffered from any such condition as he claims, it plainly played no part in any of the offences which he committed, as is evident from the facts to which he himself agreed - certainly not the later calculated course of conduct, and even the initial touching did not make the applicant "go off". He took $2000 because he wanted money. 28In relation to this issue the learned sentencing judge said - "Whilst the offender in part blames the victim for the offence for making advances to him, it is observed that the offender chose to accompany the complainant to his home. When considering factors that might properly have [been] said to have impinged on his mental state or on his mens rea there is not a great deal to take into account. However, it is submitted, with the support of an observation in the psychologist's report, that this offence was committed as a consequence of the offender's past history as a child of some sexual abuse and of approaches being made to him and the activation of what was referred to in the psychologist's report of a dormant post traumatic stress disorder condition. Whilst this factor may be relevant to an explanation for the offence occurring, and may also explain the context of the offence in terms of Mr Taha's drug use at the time, it is not a matter that will affect the assessment of objective seriousness of the offending behaviour. I accept these matters may be relevant in assessing the need for supervision and support in the context of perhaps a longer than usual parole order ... and they may also be relevant in recommending any conditions on parole... However the Court acknowledges that there is a difference between those matters which are in reality circumstances of the offence which go to evaluation of objective seriousness and circumstances personal to the offender such as past sexual abuse or drug abuse that might explain or influence the conduct of an offender or otherwise impinge on his moral culpability but are not relevant to the evaluation of objective seriousness". 29In R v Way [2004] NSWCCA 131; (2000) 60 NSWLR 168 Spigelman CJ at [86]-[87] pointed out that some matters otherwise thought of as "subjective" might also bear upon a consideration of the objective seriousness of an offence. Although it is true the notion of "objective seriousness" which his Honour was considering is that which is required to be assessed for the purposes of applying a standard non-parole period under Division 1A of the Crimes (Sentencing and Procedure) Act 1999, it seems to me that his Honour's observations about this matter are relevant to the common law position. His Honour said - "[84] The sentencing case law is replete with references to objective features of the offence and subjective features of the offender. It has not hitherto been necessary to classify a factor as one or the other. It is now necessary to construe the words "objective seriousness" of an offence. [85] The multiplicity of purposes of sentencing set out in s 3A of the Act ... do not suggest a narrow perspective as to the range of facts and matters that are to be regarded as "objective" facts and matters which may affect the judgment involved in assessing "seriousness". It is too narrow a perspective to confine attention to the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander. The inquiry which we consider to have been intended is one that would take into account the actus reus, the consequences of the conduct, and those factors that might properly have been said to have impinged on the mens rea of the offender ... [86] Some of the relevant circumstances which can be said "objectively" to affect the "seriousness" of the offence or be personal to the offender at the time of the offence will become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness) and mental illness or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender' s capacity to reason, or to appreciate fully the rightness or wrongness of a particular act or to exercise appropriate powers of control has been affected ... such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence. [87] Questions of degree and remoteness arise which will need to be developed in the case law. There are potential areas of overlap. For example, impaired mental or intellectual functioning can go to either, or both the seriousness of the offence and punishment, so far as deterrence is concerned." 30With respect, there appears to be some confusion in the passage set out above from the sentencing judge's reasons for sentence, since her Honour seems to accept that past sexual abuse or drug abuse "might explain or influence the conduct of the offender or otherwise impinge on his moral culpability" and hence were relevant to the issue of punishment but, on the other hand, states, in effect, that they were relevant only in respect of assessing the need for supervision and the possible variation of the statutory ratio between the overall sentence and the term of parole stipulated in s 44 of the Crimes (Sentencing and Procedure) Act 1999. At the same time, as is clear from the opinions I have above expressed, her Honour was plainly right to say in respect of these matters that there was not a great deal to take into account. The applicant's criminal record 31This commences in September 2002 with fines for various driving offences with further fines for such offences imposed in February 2004, November 2005, July 2006, August 2008, November 2008 and March 2009. In June 2006 the applicant was convicted on two counts of assault occasioning actual bodily harm, and was fined $1000 and $750. Perhaps more significantly, on 5 February 2007 the applicant was convicted on 11 counts of obtaining money by deception and was placed on a s9 bond for 2 years. The present offences, also involving significant dishonesty, were committed whilst he was subject to this bond. The applicant gave evidence that he had a significant problem with drug abuse and, as her Honour found, anxiety, depression and the use of medication. So far as prospects of rehabilitation are concerned, the sentencing judge concluded that only a guarded finding could be made. In light of the applicant's dishonesty to the psychologist and his continuing attempts to rationalise his offending, this conclusion is, if anything, generous. Other matters 32The sentencing judge concluded, in respect of planning, that "over a period of time the offender took a series of decisions, each of which not terribly well planned, but each requiring and assuming a certain compliance and vulnerability of the victim's position. Her Honour added - "The offender behaved as a bully, in effect terrorising the complainant, and apparently being confident that due to the complainant's fear he would continue to hand over money. The planning, as well as the vulnerability of the complainant, have not been taken into account as significantly aggravating circumstances but they are relevant and I mention them simply in the context of the overall offending behaviour. They also give the court some insight into why and in what context this offender shows little empathy for the complainant and the context of his behaviour over the two weeks of this very serious offending". The first ground of appeal 33In respect of the discount for the utilitarian value of the plea, the sentencing judge said - "... I propose to allow a discount of 10% on the sentence that would have otherwise been appropriate had the matter proceeded to trial. I take into account the utilitarian value of the plea noting that there was apparently a strong Crown case. The plea of guilty and the context of this case can also be a reflection of contrition and I accept it as such". 34Counsel for the applicant contends that her Honour erred in assessing the utilitarian value of the plea by reference in part to the strength of the Crown case. Having regard to the lateness of the plea it could not be argued that any higher discount could be granted, so that the possibility that her Honour reduced a possibly higher starting point because of the strength of the Crown case is immaterial. I note that, although the reasons for sentence are said to have been revised it seems to me very likely that the passage set out above contains errors of punctuation. In my view, it is very likely that her Honour in fact said - "I take into account the utilitarian value of the pleas. Noting that there was apparently a strong Crown case, the plea of guilty and [I think an error for "in"] the context of this case can also be a reflection of contrition and I accept it as such". 35So read, the passage is both unremarkable and correct, although I would not, with respect, have found that the applicant had demonstrated any contrition, having regard to his attempted dishonest rationalisation of the offences, which persisted during the sentence hearing, and his failure to express any degree of remorse. There is no merit in this ground of appeal. The second ground of appeal 36The error identified in the second ground of appeal is that the offences "involved actual or threatened violence" a feature mentioned in s 21A(2)(c) of the Sentencing Act and it was an error to regard the threat to use a non-existent weapon as an aggravating feature. Her Honour observed that robbery "frequently and almost always has some violence or threat attached to it" and that, so far as "the demand property with menaces" went, there was a threatened use of violence, again the threat being an element of the offence". No issue is taken with the correctness of this passage. Counsel, however, points to the following paragraph - "In relation to use of a weapon, the use or threatened use of a weapon was involved in relation to the demand property with menaces and in relation to the robbery. It is again a feature in relation to the robbery offence that a weapon is often used. It is not necessary for the Court to make a finding that there was actually a weapon used and it is the threat that the Court is taken into account as the aggravating feature". 37Counsel for the applicant points out that the applicant was not charged with armed robbery and the agreed facts did not suggest that he in fact had a weapon but, rather, that he pretended to have a weapon. Counsel submits, rightly in my view, that it would constitute double counting, when sentencing for the offence of robbery, to take into account the actual or threatened use of violence as an additional aggravating feature since it is implicit in the offence itself that actual or threatened violence has occurred. Although the Crown agreed that there was error in treating the threat of violence as an aggravating feature, I do not think that this is what her Honour did. The nature of the threat is material and can be an aggravating feature of greater or lesser significance depending on the circumstances. Her Honour was simply pointing out, in effect, that the applicant had made a threat to use a weapon and this was an aggravating feature within s21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999. In my view, this in not an error, although I would accept that it does not add much to the seriousness of the offence. The third ground of appeal 38So far as the relevance of sexual abuse as a child is concerned, I do not think that it is a separate or distinct class of mitigation, though I accept that in some cases it might lead to a relevant psychological condition or explain, at least in part, why particular offences occurred. Here, although it must be accepted in the applicant's favour, having regard to the prosecution's failure to place this matter in issue, that it had some effect on his conduct, for the reasons I have already given, it could not be realistically regarded as significant except as a rationalisation used by the applicant in an attempt to avoid dealing with the serious offences that he committed. Conclusion 39I would grant leave to appeal but dismiss the appeal.

********** 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: 06 July 2011