Yaman v R [2020] NSWCCA 239 (25 September 2020)

Last Updated: 25 September 2020

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	Yaman v R
Medium Neutral Citation:	[2020] NSWCCA 239
Hearing Date(s):	9 July 2020
Date of Orders:	25 September 2020
Decision Date:	25 September 2020
Before:	Fullerton J at [1]; Wilson J at [12]; Ierace J at [140].
Decision:	1. Leave to appeal on grounds 1, 2 and 4 granted; 2. Leave to appeal on ground 3 refused; 3. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – domestic violence offences – offences of aggravated break enter commit assault occasioning actual bodily harm and contravention of an apprehended domestic violence order – history of domestic violence offences against same victim – use made on sentence of applicant’s criminal record – assessment of objective seriousness – question of manifest excess
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Cherry v R [2017] NSWCCA 150 Faehringer v R [2017] NSWCCA 248 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kerr v R [2016] NSWCCA 218 Mulato v R [2006] NSWCCA 282 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v CTG [2017] NSWCCA 163 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 Van Der Baan v R [2012] NSWCCA 5 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Principal judgment
Parties:	Hakan Yaman (Applicant) The Crown (Respondent)
Representation:	Counsel: G Lewer (Applicant) D Patch (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2019/57009
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	Wollongong District Court
Jurisdiction:	Criminal
Date of Decision:	21 October 2019
Before:	Frearson ADCJ SC
File Number(s):	2019/57009

JUDGMENT

1. FULLERTON J: I agree with Wilson J that the appeal against sentence be dismissed.
2. I also agree with her Honour, and for the reasons her Honour has expressed, that leave to appeal on ground 3 should be refused and that leave to appeal on ground 4 should be granted but that both grounds be dismissed.
3. While I also agree that grounds 1 and 2 should be dismissed, I would have granted leave to allow those grounds to be advanced.

Ground 1: The sentencing judge was in error in finding that the aggravated break and enter involved “some significant planning”.

4. To the extent that the applicant’s submissions in support of this ground of appeal are to be understood as suggesting that the sentencing judge was in error in treating his finding that there was a significant degree of planning involved in the commission of the aggravated break, enter and steal offence as a statutory feature of aggravation in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I agree with Wilson J that when the sentencing judge’s remarks are read in context, and understood in the context of the competing submissions of the parties, his Honour did not find that offence was part of “a planned or organised criminal activity” (the statutory aggravating feature). Neither did he find that the planning for the commission of the offence aggravated the offending.
5. To the extent that it is submitted that his Honour’s finding the offence “involved some significant planning” was without evidential foundation, again for the reasons advanced by Wilson J, that submission is rejected. There was, in my view, a more than sufficient factual foundation for his Honour to have made that finding (including, but not limited to, the large number of unsolicited telephone calls the applicant placed in the 24 hours preceding the offence) and then to have applied that finding in the course of impliedly rejecting the submission advanced on the applicant’s behalf in mitigation of sentence that the offence was “spontaneous or impulsive or of short duration”.
6. While the placing of telephone calls does not necessarily signify, of itself, a premeditated intention on the part of the applicant to break into the apartment of his former partner, what they do indicate is his determination to confront his former partner at her home (despite orders put in place for her protection) and to force himself on her, including forcing his way into her apartment were she to offer continuing resistance to his desire to speak to her.
7. I would grant leave to advance the first ground of appeal but would dismiss it.

Ground 2A: The sentencing judge erred in finding the applicant’s criminal history was “aggravating on sentence”.

Ground 2B: The sentencing judge failed to give reasons as to how the applicant’s criminal history “aggravated” the sentences imposed.

8. I also agree with Wilson J that these related grounds of appeal, cast in the alternative, have not been made out.
9. Given that the complaint the subject of ground 2B concerns the treatment of the applicant’s criminal history for sentencing purposes, in the sense that it is said to lack the clarity that is fundamental to the proper exercise of the sentencing discretion, and that the complaint the subject of ground 2A contends that the judge was in error in aggravating the “sentence” by reason of the applicant’s prior criminal record, I would have granted leave to advance both grounds of appeal.
10. I accept that it would constitute a sentencing error were the sentencing judge to have treated the objective gravity of the applicant’s offending as more serious by reason of his prior criminal record since to take that approach would be to treat prior offending as an objective circumstance in disregard of the proportionality principle: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [25]. However, I do not read the sentencing judge’s remarks as offending that principle. While the treatment of the applicant’s criminal record might have been more clearly expressed in the sentencing reasons, the legal error for which the applicant contends under ground 2A is not demonstrated. That is to say, the applicant’s prior criminal record, including the multiple breaches of apprehended violence orders, and the persistent disobedience of the law that is reflected in that behaviour and more generally across the breadth of his prior offending, was available to his Honour in determining where within the boundaries set by the objective seriousness of the aggravated break and enter offence the sentence should lie: Kerr v R [2016] NSWCCA 218 at [69].
11. Although his Honour’s treatment of the applicant’s criminal record as “aggravating the sentence” was somewhat opaque, when considered in the context of his sentencing reasons as a whole I do not regard the lack of precision in his use of language as obscuring the significance of the applicant’s criminal record as a factor in the sentencing exercise or his Honour’s treatment of it in fixing the ultimate sentence. This is not to understate the importance of a sufficiently detailed explanation for how a prior criminal record is to be taken into account on sentence: Van Der Baan v R [2012] NSWCCA 5.
12. WILSON J: On 21 August 2019, Hakan Yaman entered a plea of guilty in the Local Court to an offence of aggravated break, enter and commit a serious indictable offence (“aggravated BESIO”), the serious indictable offence being assault occasioning actual bodily harm (“AOABH”). The offence was one contrary to s 112(2) of the Crimes Act 1900 (NSW); it carries a maximum penalty of 20 years imprisonment, with a standard non-parole period (“SNPP”) of 5 years. The crime was committed by the applicant against his former girlfriend. The circumstance of aggravation particularised was that the applicant had known that there was a person within at the time of entry. He was committed to the District Court to be sentenced.
13. A further offence, one of contravening an apprehended domestic violence order (“contravening an ADVO”), contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), relating to the same victim, was transferred to the District Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), to be dealt with as a matter related to the aggravated BESIO. That offence carries a maximum penalty of 2 years imprisonment, a 50 penalty unit fine, or both.
14. On 21 October 2019, his Honour Acting Judge Frearson SC imposed sentence upon the applicant in the District Court at Wollongong. For the offence of aggravated BESIO, his Honour imposed a sentence of 6 years and 10 months imprisonment, with a non-parole period (“NPP”) of 4 years and 6 months. The sentence commenced on 20 February 2019 and expires on 19 December 2025; the NPP expires on 18 August 2023. For the contravention of an ADVO offence a wholly concurrent term of imprisonment of 7 months was imposed; it commenced on 20 February 2019, and expired on 19 September 2019.
15. The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him for the aggravated BESIO. If granted leave, he proposes to advance four grounds:

“1. The sentencing judge erred by finding that the aggravated break and enter offence involved some significant planning.
2A. The sentencing judge erred in finding the applicant’s criminal history was ‘aggravating on sentence’.
2B. The sentencing judge failed to give reasons as to how the applicant’s criminal history ‘aggravated’ the sentences imposed.
3. The sentencing judge erred in characterising the objective seriousness of the aggravated break and enter offence as ‘a mid-range offence’.
4. The sentence imposed for the aggravated break and enter offence is manifestly excessive.”

16. There is no application relating to the contravention of an ADVO.

The Proceedings in the District Court

17. The applicant appeared before his Honour on Friday 18 October 2019, when evidence on sentence was taken and submissions heard. Sentence was imposed the following Monday.

The Crown Case on Sentence

Facts

18. Part of the material tendered by the Crown was an agreed statement of facts, which the sentencing judge accepted as establishing the facts of the offence. The following is drawn from it.
19. The applicant and the victim, Ms Roe, had been in a domestic relationship that had ended more than three years prior to the sentencing hearing, due to ongoing domestic violence. There were no children of the relationship.
20. On 15 December 2018, an ADVO was granted against the applicant, naming Ms Roe as the person in need of protection, following an incident at Ms Roe’s home. The terms of the order prohibited the applicant from assaulting, molesting, harassing, threatening, stalking or intimidating the victim, approaching or contacting her, or going within 200 metres of her home or workplace.
21. At about 2.20pm on Tuesday 19 February 2019, Ms Roe arrived at her home, an apartment located on the second floor of a three storey unit block. As she approached her front door and moved to place her key in the lock to open it, she heard a noise on the stairwell below her. She looked down the stairs and saw the applicant in the stairwell on the ground floor. His attendance at her home was in contravention of the ADVO, and this breach was reflected by the charge before the court on a s 166 certificate.
22. Ms Roe asked the applicant, “What do you want?” Without replying he ran up the stairs towards her and, as Ms Roe unlocked her front door, the applicant “collided” with her, such that they both fell to the floor inside the apartment.
23. There was a struggle, during which the applicant put his foot on Ms Roe’s head, physically holding her down, screaming at her, “How dare you ignore me”, and “who are you to tell me it’s over”. The victim clutched at her handbag, fearing the applicant would take it.
24. The applicant got up and went to the kitchen where he armed himself with a knife from a drawer. He returned to the living area, telling Ms Roe to sit on the lounge. She was frightened for her safety and did as she was directed. The applicant told her that she had no right to keep him out of her life. Ms Roe was crying and asking the applicant to stop.
25. The applicant threw Ms Roe onto another couch, prompting her to ask him, “Do you really want to hurt me again”, and “If you’re going to do it, if you’re gunna pull a knife on me, do it”. This caused the applicant to “back off” to a degree. He then left the unit.
26. A neighbour of Ms Roe was at home and heard her calling, “Help. Help. Call the police.” The neighbour walked towards Ms Roe’s unit and saw her standing outside her front door. She was crying and upset. She called to him, “Call the police. He’s bashed me. Harry’s bashed me” [referring to the applicant]. Police were contacted, arriving soon after.
27. On their arrival, police officers saw that Ms Roe was upset. She gave an electronically recorded statement, a Domestic Violence Evidence in Chief Statement, (or “DVEC”), and showed the officers a number of small lacerations to the backs of her hands and knuckles, which she stated were sustained when she was struggling with the applicant.
28. A short time later, police officers went to the applicant’s residence in Barrack Heights, but were told that he was not at home. The following day, 20 February 2019, soon after 10am, officers again went to the applicant’s address, intending to arrest him. They knocked on the front door and called his name.
29. Rather than answer the door, the applicant jumped from the window of his second storey bedroom into the backyard, and climbed over the back fence. The police officers began to chase him, but were prevented from doing so by two large dogs. Soon after, however, they received information that the applicant had been seen limping through the car park of Warilla Bowling Club, in the direction of the beach.
30. Minutes later, the applicant was arrested on Warilla Beach. When informed of the reason for his arrest, he replied, “I wasn’t there”. He was taken to Lake Illawarra Police Station and interviewed, the interview being electronically recorded. He acknowledged that Ms Roe was his former girlfriend, and that there was an ADVO in place for her protection.
31. Call charge records revealed that in the 24 hours leading up to the offence the applicant telephoned Ms Roe 48 times; all but one of the 48 calls went unanswered. In the same period, Ms Roe placed three calls to the applicant, with one call answered, the call being of 30 seconds duration.

Criminal and Custodial Histories

32. In addition to the agreed statement of facts, the Crown tendered the applicant’s criminal history, which included previous convictions for offences of domestic violence against Ms Roe; together with his custodial record.
33. The applicant’s criminal history commenced with a 2003 conviction for a 2001 offence of ongoing supply of prohibited drugs, resulting in the imposition of a term of 2 years imprisonment, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The following year the applicant was dealt with for possession of a prohibited drug and fined. A further such offence from December 2004 was dealt with in April 2005, again by way of a fine.
34. In September 2009, the applicant was placed on a 12 month good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act for an offence of common assault, committed in March 2008.
35. In 2011, he was fined for possessing a prohibited drug, and in 2012 he was convicted of a further offence of ongoing supply of a prohibited drug, together with an offence of driving furiously. An offence of permitting premises to be used as a drug house was taken into account when sentence was imposed for the supply offence, being a term of imprisonment for 2 years and 3 months, with a NPP of 12 months fixed. A conviction was recorded for the remaining drive vehicle furiously offence, without further penalty.
36. In January 2017, the applicant was charged with offences of being armed with intent to commit an indictable offence, common assault, and breach ADVO. The victim of all of these offences was Ms Roe.
37. In April 2017, when on bail for those offences, the applicant was charged with further domestic violence offences of which Ms Roe was, again, the victim. The offences were two counts of using a carriage service to menace and contravening an ADVO. When the police sought to arrest the applicant, he committed other crimes, of using an offensive weapon to prevent detention and urging a dog to attack.
38. On 19 October 2017, an aggregate term of 21 months imprisonment with a NPP of 7 months was imposed on the applicant for all of these crimes, excluding the offences of using a carriage service to menace and urging a dog to attack. The NPP was made subject to supervision, with conditions that the applicant participated in a mental health assessment as directed, and take medication as prescribed. For the remaining offences, a term of 6 months concurrent imprisonment was imposed for one count of using a carriage service, with the other dealt with by conviction only. The offence involving the dog was dealt with by way of a fine.
39. An offence of failing to appear was finalised on the same day, by conviction without further penalty.
40. In the interim between charge and sentence for those offences, on 20 April 2017, the applicant was convicted of driving with an illicit drug in his blood (an offence from October 2016) and possessing a prohibited drug (an offence from December 2016). Fines and (for the former offence) a disqualification from driving were imposed. Another offence of driving with an illicit drug in his blood committed on 13 March 2017 was also dealt with on 20 April 2017, by fine and disqualification, as was an offence of contravening an ADVO (from February 2017), by conviction without further penalty.
41. The custodial history was unremarkable, showing two minor institutional offences recorded against the applicant in 2013.

The Details of Earlier Relevant Convictions

42. Also before the sentencing court were statements of fact giving the details of the offences of domestic violence committed by the applicant against Ms Roe in the past.
43. The January 2017 offences occurred some time after the relationship between Ms Roe and the applicant had ended. At that time, there was an ADVO in place, which had been granted against the applicant on 24 March 2016.
44. On the evening of 12 January 2017, the applicant sent Ms Roe a series of text messages demanding that she return to his home. Frightened of the applicant, Ms Roe did not go to his home. She attended there the following morning to collect some property of hers. When she arrived, the applicant refused to allow her to enter the premises, instead abusing her, “Fuck you, you fucking slut”.
45. Ms Roe was frightened and left the applicant’s address without her property. She was on foot, and walked along the roadway. The applicant pursued her in his car, driving at her at speed, causing her to jump from the road to the footpath, in fear of being run down. The applicant stopped his car and got out, yelling “fucking slut” to Ms Roe. She was frightened, and ran into the front yard of a nearby residence, followed closely by the applicant. The applicant took hold of Ms Roe by her upper arms, and there was a struggle. During the struggle, the applicant grabbed at Ms Roe’s throat, grasping a gold chain she wore, and pulling it from her with enough force to cause pain and reddening to her neck area.
46. The applicant then grabbed at Ms Roe’s handbag, trying to pull it from her grasp. She struggled to hold onto it, losing her grip on the mobile telephone she had been holding in her hand, and dropping it to the ground, where it broke into pieces. The applicant picked up some of the pieces and went back to his car. Ms Roe ran off, with the applicant driving after her yelling at her from his car. When Ms Roe got to the address she had been running to, the applicant stopped the car and, taking a tyre iron from his car, went to Ms Roe and pushed her to the ground. He stood over her shouting at her, the tyre iron in his hand. A male neighbour came to Ms Roe’s rescue, and there was a physical struggle between the men. Police arrived soon after and Ms Roe gave a DVEC to the attending officers.
47. The applicant was arrested on 23 January 2017. He told police that Ms Roe had come to his place and he “couldn’t handle it”.
48. The April 2017 offences, committed when the applicant was on bail for the January crimes, commenced with a series of text messages sent to Ms Roe on and from 30 March 2017, in breach of the ADVO. The content of the messages was abusive and threatening. The applicant also sent Ms Roe a number of photographs by text message, including a photograph of his lacerated wrist; and made numerous telephone calls to her, which she left to go to voicemail. Although the caller number was masked as “silent,” the applicant left voice messages in which he identified himself. Police officers were later able to listen to the voice messages, and view the text messages.
49. On 1 April 2017, the applicant left a voice message on Ms Roe’s phone. The following day, he rode his bicycle up and down in the street past her home a number of times. On 3 April 2017, when Ms Roe was with police officers making a complaint about the applicant’s conduct, he again telephoned her. When she answered the call, he could be heard making threats against her. On answering another call from him, Ms Roe asked to be left alone. The applicant responded, “No you’re not going to be left alone, I’m gunna fuck your life up, that’s what I’m gunna do”.
50. On 20 April 2017, the applicant again sent Ms Roe a series of text messages, beginning at 3 o’clock in the morning. Ms Roe was due at Wollongong Local Court that day to give evidence against the applicant for another criminal matter, and she showed the messages to the police officers involved in the hearing. Whilst taking a DVEC from Ms Roe about what had taken place, the applicant telephoned her three times, with the officers able to hear what he said.
51. Police attended the applicant’s home to arrest him. Having opened his front door, he closed it immediately after he realised the callers were police officers, and refused to open it again or leave his home. Opening his door, the applicant used his dog, a German Shepherd, to threaten the police, telling them he would “put my dog on ya”. He was warned that the dog would be sprayed with OC or capsicum spray, responding “spray him then”. He released his hold on the dog and urged him, “Get ‘em boy, get ‘em”. The dog ran at the officers and was sprayed, thereafter running off.
52. The applicant threatened to set himself alight, and a siege situation ensued, with the applicant surrendering himself after an hour of negotiations. A number of emergency response personnel and vehicles had been required to be present during the siege.
53. Further charges were laid against the applicant in December 2018, and he was admitted to bail. That bail was current at the time of the commission of the present offences (and, after the conclusion of these proceedings before the District Court, the applicant was convicted of stalking, and destruction of property).

The Applicant’s Case on Sentence

54. The applicant did not give evidence.
55. He tendered a report of a psychosocial assessment from Jennifer Brown, a Client Assessment and Referral Consultant from Legal Aid NSW, dated 11 October 2019, which had been prepared for the sentencing hearing. The report was relied upon by the applicant as an account of his family circumstances and subjective background.
56. Ms Brown was provided documentary material relevant to the offences, and interviewed the applicant. The applicant described himself as one of three children to his parents, of whom he spoke lovingly. His father had died in 2005, and he described this as a significant loss for which he continued to grieve. For the four to five years prior to sentence, he had been caring full time for his mother, providing daily care and support to her. The applicant spoke of a traditional Muslim upbringing, where his parents had emigrated from Turkey. His parents had only a basic understanding of English, always working and socialising within the Turkish community in Sydney.
57. The applicant told Ms Brown about his brothers, and his supportive relationship with one brother who had visited him in custody and was looking after his dog.
58. The applicant spoke of being introduced through work colleagues at a kebab shop to “speed” and “ice”, the latter being his “drug of choice for a number of years”. He had consistently taken drugs through his late twenties and thirties. He described having had a very protective environment when he was growing up and taking drugs out of curiosity, before “going overboard”. The applicant had attended Oolong House, a residential drug rehabilitation service, for 16 weeks at one time, and had remained abstinent from drugs for a month after the programme ended.
59. The longest period of abstinence was the period spent in custody awaiting sentence.
60. The applicant described his marriage, from which he had three children, the eldest being 27 years old, and youngest 18 years old. All of the applicant’s children lived with their mother. He said that he had an amicable relationship with his wife.
61. It was the applicant’s drug use that led to the end of his marriage after his wife gave him an ultimatum to give up drugs or separate from her. They separated. The applicant stated that the previous five years had been the worst years for him and his biggest regret was the loss of his marriage. Although his children were angry and disappointed in him, they remained in contact.
62. The applicant referred to Ms Roe as his most recent partner, with whom he had been involved for the previous four to five years. The applicant blamed his last two custodial sentences on his “toxic relationship” with her, and stated that he regrets returning to the relationship after the expiration of his first custodial sentence. He told Ms Brown that he is no longer in a relationship with Ms Roe.
63. The applicant achieved a year 10 certificate and attended two years of Mechanical Technology Certificate course. He worked at a kebab shop, where he was introduced to using and selling drugs. Eventually, his addiction took over and he remained engaged in criminal activities to pay for his addiction. His last place of work was in 2000; he has been on a Carers’ Pension for the five years previous to sentencing, whilst caring for his mother.
64. The applicant completed various programmes in custody: a Mood Management Program, DV Remand Course, Save a Mate Certificate, Red Cross Certificate in First Aid, and Remand Addictions. He currently works in custody at the metal shop. He told Ms Brown that he has “returned to his faith while in custody” and attends Muslim classes and prayer groups. He also said that he has gained a lot of support through the Crystal Meth Anonymous Group and does not wish to return to gaol in the future. He told Ms Brown that he has been diagnosed with depression in the past and takes depression and anti-anxiety medication whilst in custody.
65. The applicant tendered a number of certificates attesting to his participation in the courses he described to Ms Brown, together with attendance records at Crystal Meth Anonymous/Narcotics Anonymous, which the sentencing judge noted he had attended 13 times.

The Submissions to the Sentencing Court

66. In written submissions to the sentencing court, the Crown argued that the applicant’s conduct with respect to the s 112(2) offence fell in the “mid-range of objective seriousness”. The Crown pointed to the fact that:

“a. the offence involved a degree of premeditation;
b. the applicant’s conduct was sustained;
c. the conduct included:

i. the exertion of physical force against the victim (specifically, the collision with the victim at the entry, the struggle with the victim, and the offender throwing the victim onto another lounge);
ii. the physical restraint of the victim by the offender placing his foot on the victim’s head; and

d. the victim was fearful for her safety (including fearing that the offender would use the knife against her) and suffered small lacerations to the back of her hands and her knuckles.”

67. Referring to s 21A(2) of the Crimes (Sentencing Procedure) Act, the Crown argued that the offence was aggravated by the use of a weapon (the knife obtained from the victim’s kitchen), by its commission in the home of the victim, and by the fact that that the applicant was subject to conditional liberty on bail and, further, in breach of an ADVO.
68. The Crown also submitted that, in view of the applicant’s criminal history, (and noting that the offences were committed approximately one month after the applicant’s sentence of imprisonment expired for offences against the same victim), specific deterrence, protection of the community, and retribution “should be attributed significant weight in the sentencing exercise”.
69. The Crown contended that the applicant’s prospects of rehabilitation should be approached with caution, noting his previous convictions for domestic offences against the same victim, the breach of an ADVO, the fact that the relationship between the applicant and Ms Roe had ended over three years previously, the applicant’s lack of remorse for the impact of his offending upon the victim, and his limited insight into his offences.
70. In oral submission, the Crown also referred to the applicant’s long years of drug abuse, from when he was 28 years to 48 years of age, evidenced by previous sentences for drug offences. The Crown submitted that there was no basis upon which to make a finding of special circumstances.
71. The Crown disputed the applicant’s contention that the offence was not planned, and that this should be a mitigating factor, submitting that the applicant had travelled to the victim’s address and, in the 24 hours prior to the offence, made a number of telephone calls to the victim. The Crown argued that the s 112(2) offence could not be characterised as spontaneous and impulsive.
72. In written submissions on behalf of the applicant, the applicant submitted that the offence fell below the midrange on the scale of objective seriousness, given that it was of brief duration, the actual bodily harm occasioned involved only small lacerations to the backs of the victim’s hands, and the applicant ceased offending of his own volition and left the premises.
73. It was acknowledged that the applicant used a knife in the course of the offence and that this was an aggravating factor. Conversely, the applicant pointed to features said to mitigate sentence, being that the offence was not part of planned or organised criminal activity and was instead “a spontaneous and impulsive act short in duration”. In oral submissions, the applicant emphasised that he had not been armed on attending the victim’s home, but took up a knife found there. The applicant submitted that the offence was “lower than mid-range”, and conceded that a sentence of imprisonment was appropriate.
74. Referring to his drug addiction, the applicant pointed to his engagement in custody with programmes and groups such as the Crystal Meth Anonymous group, submitting that he had maintained sobriety and was motivated to remain drug and crime free. He argued that the court should make a finding of special circumstances as he had demonstrated prospects of rehabilitation and would benefit from an extended period of supervision.

The Conclusions of the Sentencing Judge

75. The sentencing judge set out the nature and circumstances of the offences, drawn from the agreed facts, and noted the maximum penalties applicable to the offences before the court and the SNPP relevant to the s 112(2) offence.
76. Referring to the pleas of guilty entered in the Local Court, the sentencing judge concluded that there should be a discount on the sentence that would otherwise have been imposed of 25%, to reflect the utilitarian value of the pleas.
77. As to the objective gravity of the offences, the sentencing judge concluded that the s 112(2) offence was “a midrange offence”. He referred in that regard to the aggressive, violent intrusion into the victim’s house; the applicant’s conduct in putting his foot on Ms Roe’s head and later throwing her to a couch; and of threatening her with a knife with which he armed himself inside the premises. He noted that the serious indictable offence particularised, AOABH, and the circumstance of aggravation relied upon, knowing there was a person within, made the offence more serious than many other examples of an offence contrary to s 112(2) of the Crimes Act. His Honour accepted that the applicant had acted spontaneously in arming himself with a knife, but was not persuaded that the offence overall was committed spontaneously, noting that:

“The forty-eight calls demonstrate that this was no spontaneous crime generally”.

78. His Honour was also conscious of features that aggravated the matter with respect to sentence, being the commission of the offence when the applicant was subject to conditional liberty, and to an ADVO for Ms Roe’s protection.
79. Although there had been multiple contraventions of the ADVO, his Honour observed that the breach relied upon was the applicant’s attendance at the complainant’s home.
80. Noting the applicant’s criminal record, containing drug offences over a period of many years and multiple convictions for offences committed against Ms Roe over time, his Honour concluded that it was a record of “persistent disobedience”, a feature relevant to the determination of sentence.
81. The sentencing judge had regard to the evidence relied upon by the applicant, and set out his subjective circumstances as they had been outlined by Ms Brown. He was prepared to accept that the applicant had plans for the future, intending to care for his mother, and that the care he had formerly provided to her was commendable, and established “a measure of good character”. His Honour noted that the applicant claimed to have some insight into his poor choices, but concluded that he had no remorse for the way that he treated the victim.
82. His Honour accepted the Crown’s submission that the offence, occurring in the victim’s home, was premeditated, whilst the use of a weapon was opportunistic. The sentencing judge referred to the applicant’s submissions that the offence was of short duration, ending because the applicant desisted; and that the injuries inflicted were at the lower end of actual bodily harm, with the knife taken up spontaneously.
83. As to the dispute between the parties concerning the spontaneity or otherwise of the commission of the offence, he said:

“When I look at that I need to consider not just the result and injury but the actual level of violence and threats. He did desist, that is true, when she rebuked him, but though there was a spontaneous aspect to it, the offence itself, in my view, involved some significant planning obviously with all those calls that preceded it.”

84. His Honour noted that the applicant had completed a domestic abuse course in custody that it was submitted would give him “insight and some hope for the future”. However, the sentencing judge was conscious of the tension between the applicant’s participation in such a course, and the complete absence of any expression of remorse by the applicant for his crimes. He viewed the applicant’s plea as “a poor manifestation of remorse”, concluding that the applicant has very guarded prospects for the future. His Honour could not conclude that the applicant was unlikely to re-offend:

“because he still does not acknowledge responsibility and blames the ‘toxic relationship’. I do not accept, contrary to the psychosocial assessment, that he has any real insight into why he commits this type of crime and the only remorse he ever expressed was in relation to his own family”.

85. Having referred to the purposes of sentencing set out at s 3A of the Crimes (Sentencing Procedure) Act, his Honour noted the competing submissions as to whether a finding of special circumstances should be made, observing:

“I think his prospects of rehabilitation are actually quite poor but nevertheless, although he is presently abstinent from drugs, it seems to me I should find special circumstances on the basis of his drug addiction. I think he probably needs some extra time to cope with that. It is a question of what to do with it taking into account the objective and subjective matters and the purposes of sentencing in 3A and there is a constraint on varying the ratio too much because it is still the law that the objective gravity has to be represented in the non‑parole period.”

86. Sentence was imposed.

The Application to this Court

Ground 1: the question of “significant planning”

87. The applicant argues that, in concluding that the s 112(2) offence “involved some significant planning” the sentencing judge was, in effect, concluding that an aggravating feature had been established, in the sense referred to in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act. That provision is in the following terms:

21A Aggravating, mitigating and other factors in sentencing

...
(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

...
(n) the offence was part of a planned or organised criminal activity

88. It is argued that there was no evidence that the crime had been well planned, and it was not open to the sentencing judge to conclude that it was.
89. In dealing with the proposed ground it is important to bear in mind the overall context of the sentence hearing that occurred before the sentencing court, and against which the remarks on sentence were delivered.
90. During the proceedings on sentence in this matter, an issue in dispute between the applicant and the Crown was whether the offence had been committed without planning. The applicant contended that it had, and that this was a mitigating feature pursuant to s 21A(3)(b) of the Crimes (Sentencing Procedure) Act; the Crown submitted that the offence involved a degree of planning and that it could not be regarded as spontaneous such as to allow for a degree of mitigation of sentence. In giving judgment on sentence, the sentencing judge had to resolve that dispute, since it concerned a matter directly relevant to the determination of sentence, and determine whether the offence was or was not one committed spontaneously and “not part of a planned or organised criminal activity”, as contemplated by s 21A(3)(b). The remarks on sentence, and the language used by his Honour, must be viewed in that context.
91. The proposed ground 1 relies upon the extraction of discrete sentences from the remarks on sentence, taken out of the context of the whole, to argue for error. That is not the way error is determined by an appellate court. The context, of the hearing on sentence, of the matters in dispute, and of the sentencing court’s resolution of dispute, provides the framework by which the judgement is to be understood. It is important to look at any impugned passages, sentences, or words of a judgment in context. When the applicant’s argument is viewed in that way, it cannot be made good.
92. There were features of the applicant’s crime that pointed to a degree of forethought, and it was open to his Honour to conclude that the offence was one in which inhered some planning. The high volume of telephone calls made by the applicant to the victim – in breach of an ADVO – in the 24 hours preceding his attendance at her home; his presence in the stairwell of her apartment block at the precise moment she took out her keys to open her front door; the speed with which he ran up the stairs to the landing outside her home; the force with which he physically collided with her, causing them both to fall through the door as it was unlocked; and what happened immediately thereafter; were aspects of the evidence upon which it was open to the sentencing court to infer that the applicant had come to Ms Roe’s apartment with a clear determination to confront her, and to do so forcefully if needs be.
93. Having drawn that inference, it was equally open to his Honour to reject the applicant’s submission that the sentence imposed upon him should be mitigated by the spontaneity of the commission of the crime, pursuant to s 21(3)(b).
94. Indeed, in my view, the only conclusion reasonably open to the sentencing court was that the applicant had watched for Ms Roe’s arrival at her home, determined to confront her, and willing to do whatever was necessary to have that confrontation. The applicant had persistently telephoned the victim in the day preceding the commission of the offence, when he was prohibited by a court order from so doing. Even though all but one of those calls went unanswered by Ms Roe, the applicant clearly did not accept that fact as pointing to Ms Roe’s unwillingness to speak to him. Instead, he attended her home, again, in circumstances where he was prohibited from doing so. He did not then confront her on her approach to the unit block, or confront her outside it. Inferentially, he waited in the stairwell, observing her mount the stairs to her apartment and, as she stood at her door with her keys readied to open it, he surged forward determined to have access to her in her apartment.
95. Assessing what was said by the sentencing judge in the full and proper context of the proceedings on sentence, and in the full context of the whole of his Honour’s remarks, it is clear that his Honour viewed the matter in that way. Having reached the conclusions he did, the sentencing judge found that the sentence to be imposed upon the applicant could not be mitigated to reflect a crime spontaneously committed, as the applicant had submitted was the proper approach. The language he used cannot be reasonably interpreted to extract from it a positive finding that the offence was planned to such an extent as to establish a feature of aggravation pursuant to s 21A(2)(n).
96. Of course, it is important for sentencing judges to structure sentencing judgments to facilitate the comprehension of them by others, and particularly those most affected by them, the offender and any victim. Clarity of expression and language is always desirable, and obviates the opportunity for the sort of “armchair appeal” in which counsel who did not appear at first instance searches for possible error in the remarks on sentence, without proper reference to the issues that were in dispute before the sentencing judge, and the necessity for the sentencing judge to determine those issues.
97. Here, having considered what his Honour said in the context of the whole, I do not accept the interpretation of his Honour’s remarks that the applicant argues should be made. Looked at in context, their meaning is clear. I would not grant leave to advance this ground.

Ground 2: the use made of the criminal history

98. By this proposed ground the applicant complains that the sentencing judge had regard to the applicant’s criminal history in such a way as to contravene the principle expressed in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, at 477, which is as follows:

“There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell” [footnote omitted].

99. The applicant points to two passages in particular from the remarks on sentence to contend there was error. Firstly, the passage in which his Honour said:

“It is true that the principal offence is aggravated. When I say aggravated, the sentence is aggravated, not the objective gravity according to the authorities. It is aggravated by the breaches of the AVO. It does appear that the offender was also on bail for stalking and destruction of property which had not been dealt with, and that is a further matter in aggravation on sentence.”

100. The applicant argues that it is entirely unclear what “breaches of the AVO” his Honour was referring to, contending that “the pluralisation of ‘breach’ suggests he was not referring to the contravention offence to [sic] which the applicant was also being sentenced”.
101. Secondly, the passage in which, after having set out the details of the applicant’s criminal record, his Honour said:

“When I look at the record it is actually one of persistent disobedience and that is the way I will treat it, that is aggravating on sentence.”

102. It is argued that:

“The findings by the sentencing judge are so opaque that one can't discern what his Honour has done with the fact of the applicant's prior convictions”.

103. Again, this ground cannot be made good if his Honour’s remarks are read as a whole; when taken in context, the way in which the applicant’s criminal record was treated is readily discernible.
104. The meaning of the first impugned passage from his Honour’s remarks for example, is perfectly plain when one reads it in the context of the passage which preceded it. In that passage his Honour said:

“As to the breach of the AVO there were multiple breaches in fact, there was harassment, threats, intimidation; but what he is alleged to have done is presenting himself at the unit, that is the breach of the AVO that founds the charge.”

105. The “pluralisation of breach” was a reference by the sentencing judge to those multiple ways in which the applicant had breached the ADVO to which he was subject. Quite clearly, the sentencing judge was making an observation that the applicant had in fact breached the ADVO to which he was subject in more than one way, but that the breach relied upon by the Crown to found the offence of contravening an ADVO was the applicant’s attendance at the victim’s home, a place he was prohibited from attending.
106. In referring to the “aggravation on sentence”, his Honour was referring to the principle – both at common law and pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act – that the commission of an offence by an offender who is subject to conditional liberty is an aggravating feature which can be taken into account when determining the appropriate sentence. Whilst I accept that the phrase used by his Honour, “the sentence is aggravated”, may be regarded as infelicitous, it is plain from the context that his Honour was making clear that he had not treated the breaches of the ADVO, and the fact that the applicant was subject to bail at the time, as increasing the objective gravity of the offence, contrary to principle. Rather, those features of the matter were treated as a feature which should properly require an increase to the sentence upon that which would otherwise have been imposed.
107. Reading the whole of the remarks of the sentencing judge, it is clear to me that his Honour took the applicant’s criminal record into account in accordance with principle. Firstly, the persistence with which the applicant flouted the criminal law, evidenced by the multiple convictions for drug offences and, more particularly, the many convictions against him for domestic violence offences, was treated in a way entirely consistent with the principles established by Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, with his Honour’s use of language echoing what the High Court there said, at 477:

“The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.” [Emphasis added.]

108. Secondly, the fact that the applicant was at conditional liberty when he forced his way into Ms Roe’s home and assaulted her was a feature taken into account in determining the sentence to be imposed, resulting in an increase to the sentence. That too is entirely in accordance with established sentencing principle, and statute.
109. It is possible to pick apart his Honour’s remarks, and criticise individual words or phrases, but that approach is unhelpful. It is the whole of the sentencing judgement which must be considered. Considering the whole of his Honour’s remarks, I cannot discern error in the treatment of the applicant’s criminal history.
110. The applicant has a record which can only be regarded as evidencing a continuing attitude of disobedience, or “persistent disobedience”, to the law, and particularly to the law in place to protect persons from unwanted interference by former romantic partners. That highlights his high moral culpability for these offences, and weighs heavily in favour of a strongly deterrent sentence. Put plainly, a condign sentence was required in this instance to deter the applicant from again interfering with Ms Roe’s right to determine her own future, as he had repeatedly done in the past.
111. I would not grant leave to advance this ground since, like the proposed ground 1, it relies upon deconstructing the whole of the text of the sentencing judgment to find error. That is not a legitimate approach.

Ground 3: the assessment of the gravity of the offence

112. The applicant argues that it was not open to the sentencing judge to conclude that the offence of aggravated BESIO was one which was in the mid-range of objective gravity. He submits that the features properly to be taken into account in that assessment are as follows:

“In the present case, the factors relevant to the assessment of the objective seriousness included: the nature of the serious indictable offence committed (here assault occasioning actual bodily harm which carried a maximum penalty of 5 years imprisonment), the extent of the actual bodily harm (in this case very minor and on the cusp of constituting such harm), the nature of the break (opening an unlocked door), the nature of the entry (falling through the door), the fact that the premises were the home of a person with whom the offender had had a domestic relationship, the relatively short duration of the offending, the extent of the violence and threats, the type of weapon used and the use made of it (a knife held but not used to inflict injury), how the offender came to be armed, the number of persons present in the home, the reason for desistence of offending, the extent of any planning (see Ground 1), the absence of property damage, and whether there was any ongoing harm to the victim (there was no evidence of such harm).”

113. The question of the characterisation of the objective gravity of an offence is a matter that falls within the wide discretion of sentencing judges, as was emphasised by Spigelman CJ in Mulato v R [2006] NSWCCA 282, at [37]:

“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.”

114. Because it is a discretionary matter, error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505 must be disclosed if the applicant is to succeed in his challenge to the assessment of the gravity of the offence made by the sentencing judge. That is, it must be demonstrated that his Honour made a material error of principle or fact; that he failed to take into account a relevant consideration or took into account an irrelevant consideration; or that he arrived at a conclusion so unreasonable as to point to an error of such a kind.
115. The applicant does not identify any particular error and so, presumably, contends that his Honour’s assessment was so unreasonable that there must have been error.
116. I do not accept that contention. It is one made in reliance upon a mischaracterisation of the facts of the offences, and one which is inconsistent with the facts as they were found by the sentencing court.
117. The applicant’s submissions in support of this ground significantly minimise the gravity of his crime. A few examples drawn from the submission extracted above at [112] illustrate the point.
118. Referring to the elements of break and enter, he contends that the nature of the break was to “open an unlocked door”, whilst entry consisted of “falling through an unlocked door”. That raises the image of a person turning the handle of an unlocked door and tripping or otherwise falling into the premises, as if by accident.
119. The facts that the applicant accepted and which the sentencing judge found to have been established however, are that the applicant rushed up the stairs towards Ms Roe, taking advantage of the moment in which she put her key in the lock, and confronted her physically, the force of that confrontation being so great as to propel both her and him through the doorway and onto the floor. That was a violent act and one which was far more frighteningly aggressive than an individual somehow tumbling through an unsecured door. It was also far more serious than the sort of break and enter which is typical of an offence of this nature, such as cutting through a flyscreen or breaking a window and climbing into an empty home when in company, generally for the purpose of stealing. The applicant’s conduct was violent, and forceful, and heightened the gravity of the crime overall.
120. The applicant also relies upon the fact that, whilst a knife was used, no injury was inflicted. However, had the applicant stabbed or cut Ms Roe, doubtless he would have been charged with a more serious offence. As this Court has frequently said, an offence is not made less serious because it was not more serious: R v CTG [2017] NSWCCA 163 at [60]–[63]; Faehringer v R [2017] NSWCCA 248 at [47]. The fact that the applicant armed himself significantly increased the seriousness of the crime.
121. In considering this ground, regard must be had to what the sentencing judge found that the applicant did, rather than to a version of the offence which puts an unwarranted and unavailable gloss on it.
122. The applicant attended the victim’s home at a time when he was well aware he was not permitted to do so because of the nature of their previous relationship, a matter relevant to his moral culpability. Having watched from the stairwell as Ms Roe approached her front door and got her door key out in readiness to unlock her door; the applicant rushed up the stairs towards her and knocked into her with such force that the door was flung open and Ms Roe was propelled through it, landing on the floor. The victim was no doubt already in a state of fear because of the telephone calls she had received from the applicant; particularly against that background, this aggressive confrontation must have been very frightening indeed.
123. Once inside her home, a place that should have been a place of peace and security for the victim, the applicant put his foot on Ms Roe’s head, a demeaning and violent act, and struggled with her, inflicting minor injuries. He then made her sit on a couch. He deliberately armed himself by taking a knife from a drawer in the kitchen; the very possession of the knife in those circumstances constituted a threat to Ms Roe. The applicant then threw Ms Roe onto another lounge, before desisting in response to her query as to whether he was going to use the knife and hurt her. The offence was of short duration.
124. Taking into account those features, it was well open to the sentencing judge to conclude that the offence fell at the mid-range. The applicant has failed to establish that the sentencing discretion has miscarried.

Ground 4: manifest excess

125. This proposed ground can be quickly dealt with since, to make it good, the applicant relies heavily upon the Court having accepted his arguments with respect to the other proposed grounds, arguments I have rejected.
126. The principles relevant to a ground of appeal that contends that a sentence is manifestly excessive (or manifestly inadequate) were summarised by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, at [443]:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
It is not to the point that this Court might have exercised the sentencing discretion differently.
There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

127. The applicant argues that, when regard is had to the legislative guideposts of the maximum penalty and the SNPP, the objective gravity of the offence (as he would characterise it), his subjective case, and the range of sentence available by reference to other decided cases; the sentence imposed is manifestly excessive.
128. The objective gravity of the matter must be accepted to be as his Honour concluded it was, no error having been established in that regard.
129. The maximum penalty for this offence is 20 years imprisonment and the SNPP is 5 years.
130. The applicant’s subjective case was not one which demanded leniency. He had been a long term and apparently unrepentant user of illicit drugs and his lifestyle was one of casual criminality. He had not worked in many years and his prospects for the future were found by the sentencing judge to be poor. His criminal history was such that a strongly deterrent sentence was required.
131. General deterrence had a significant role to play. Offences committed by (mostly) men who, like the applicant, refuse to accept that a partner or former partner is entitled to a life of her own choosing, must be dealt with sternly by the courts, to mark society’s strong disapprobation of such conduct, and to reinforce the right of women to live unmolested by a former partner. Offences involving domestic violence are frequently committed, and the criminal justice system must play a part in protecting those who have been or may be victims of it.
132. Although said in the context of an offence involving the death of a victim of domestic violence, the High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54] referred to the role of the criminal justice system relevant to domestic violence offending as including:

“the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. [...]”.

133. The Court continued at [55]:

“[...] A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.”

134. The point was given emphasis in Cherry v R [2017] NSWCCA 150, where Johnson J said at [78], (Macfarlane JA and Harrison J agreeing):

“It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community.”

135. The right of all women to determine their own path in life must be protected and upheld by the courts. Where a woman’s right is ignored or disregarded by an offender, that right must be vindicated, including by punitive and strongly deterrent sentences where necessary.
136. The applicant had failed to accept that his former partner had chosen a life that did not include him and, by the commission of a violent crime against her, he sought to force her to resume a relationship with him. His act had to be denounced; stern punishment had to be imposed, and the applicant and others deterred from future conduct of that nature.
137. Having regard to all relevant considerations I cannot conclude that the sentence imposed by his Honour was unfair or unjust. On the contrary, it properly reflected the gravity of the crime, and the need for specific and general deterrence.
138. I would grant leave to advance this ground, but would dismiss it.

Conclusion

139. The orders I propose are:

(1) Refuse leave to appeal on grounds 1, 2, and 3;

(2) Grant leave to appeal on ground 4;

(3) Dismiss the appeal.

140. IERACE J: I agree with Fullerton J that leave to appeal on grounds 1 and 2 should be granted, and I also agree with Wilson J that leave to appeal on ground 3 should be refused and that all four grounds should be dismissed.

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