Atholwood v The Queen
[1999] WASCA 256
•15 NOVEMBER 1999
ATHOLWOOD -v- R [1999] WASCA 256
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 256 | |
| COURT OF CRIMINAL APPEAL | 15/11/1999 | ||
| Case No: | CCA:66/1999 | 21 JULY 1999 | |
| Coram: | MALCOLM CJ IPP J WALLWORK J | 21/07/99 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowedSentence reduced | ||
| PDF Version |
| Parties: | DAVID JAMES ATHOLWOOD THE QUEEN |
Catchwords: | Criminal law Appeal Sentence Cultivating cannabis with intent 42 plants Prosecution accepted that appellant played limited role Other charges against him withdrawn Then he pleaded guilty Entitled to greater discount for guilty plea than allowed |
Legislation: | Nil |
Case References: | Kennedy v R, unreported; CCA SCt of WA; Library No 980145; 4 April 1998 R v Bulger [1990] Qd R 559 R v Doyle (1994) 71 A Crim R 360 R v Gray [1977] VR 225 R v Holder [1983] 3 NSWLR 245 Simpson v The Queen (1993) 68 Crim R 439 Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Fazari v R, unreported; CCA SCt of WA; Library No 960651; 14 November 1996 Gilbert v R, unreported; CCA SCt of WA; Library No 920164; 27 March 1992 House v The King (1936) 55 CLR 499 Langridge v R (1996) 17 WAR 346; (1996) 87 A Crim R 1 Miles v R (1997) 17 WAR 518 Pizzata v R, unreported; CCA SCt of WA; Library No 930596; 29 October 1993 Poole v R [1999] WASCA 46 R v GP (1997) 18 WAR 196 R v Jankovic (1995) 81 A Crim R 14 R v Liddington (1997) 18 WAR 394 R v Loughnan, unreported; CCA SCt of WA: Library No 4966; 23 June 1983 R v Marchesano (1992) 61 A Crim R 137 R v Phillips, unreported; CCA SCt of WA; Library No 5038; 19 August 1983 R v Stol (1989) 44 A Crim R 137 R v Tait (1979) 46 FLR 386 R v Yanko, unreported; SCt of WA; Library No 960030; 23 January 1996 Weng Keong Chan (1989) 38 A Crim R 337 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ATHOLWOOD -v- R [1999] WASCA 256 CORAM : MALCOLM CJ
- IPP J
WALLWORK J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Appeal - Sentence - Cultivating cannabis with intent - 42 plants - Prosecution accepted that appellant played limited role - Other charges against him withdrawn - Then he pleaded guilty - Entitled to greater discount for guilty plea than allowed
Legislation:
Nil
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Result:
Appeal allowed
Sentence reduced
Representation:
Counsel:
Appellant : Mr R Richter QC
Respondent : Mr K P Bates & Ms T R Watt
Solicitors:
Appellant : Pryles & Defteros
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Kennedy v R, unreported; CCA SCt of WA; Library No 980145; 4 April 1998
R v Bulger [1990] Qd R 559
R v Doyle (1994) 71 A Crim R 360
R v Gray [1977] VR 225
R v Holder [1983] 3 NSWLR 245
Simpson v The Queen (1993) 68 Crim R 439
Case(s) also cited:
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Fazari v R, unreported; CCA SCt of WA; Library No 960651; 14 November 1996
Gilbert v R, unreported; CCA SCt of WA; Library No 920164; 27 March 1992
House v The King (1936) 55 CLR 499
Langridge v R (1996) 17 WAR 346; (1996) 87 A Crim R 1
Miles v R (1997) 17 WAR 518
Pizzata v R, unreported; CCA SCt of WA; Library No 930596; 29 October 1993
Poole v R [1999] WASCA 46
R v GP (1997) 18 WAR 196
R v Jankovic (1995) 81 A Crim R 14
(Page 3)
R v Liddington (1997) 18 WAR 394
R v Loughnan, unreported; CCA SCt of WA: Library No 4966; 23 June 1983
R v Marchesano (1992) 61 A Crim R 137
R v Phillips, unreported; CCA SCt of WA; Library No 5038; 19 August 1983
R v Stol (1989) 44 A Crim R 137
R v Tait (1979) 46 FLR 386
R v Yanko, unreported; SCt of WA; Library No 960030; 23 January 1996
Weng Keong Chan (1989) 38 A Crim R 337
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1 MALCOLM CJ: On 21 July 1999 this Court granted the appellant leave to appeal against sentence and set aside a sentence of imprisonment of 2 years and 9 months which had been imposed upon him in the District Court at Perth on 20 April 1999. The Court imposed a sentence of imprisonment for 12 months and ordered that the appellant be eligible for parole.
2 The reasons to be published by Wallwork J sufficiently state my own reasons for joining in the making of those orders.
3 IPP J: I have had the benefit of reading the reasons to be published by Wallwork J. I agree with those reasons but merely wish to add some additional comments of my own. The relevant facts and circumstances are set out in his Honour's reasons and I shall not repeat them, save to the extent necessary to elucidate my additional comments.
4 In my opinion, the appeal against sentence should succeed on two grounds. The first concerns the factual basis on which her Honour sentenced the appellant. The second concerns the learned Judge's approach to the plea of guilty.
5 The offence for which the appellant was sentenced was cultivating a quantity of cannabis plants with intent to sell or supply cannabis to another. There were 42 plants involved. Seventeen were found in the carport of the premises of which the appellant was the tenant, and 25 were found in the bedroom of the premises. The learned Judge described the enterprise as "a moderate commercial cultivation of cannabis to which this offender was a party". Her Honour observed that had the plants in the carport matured, their value would have amounted to $127,500 and that the plants in the bedroom, had they fully matured, would have been worth $187,500. The learned Judge sentenced the appellant on the basis that he was "a person who involved himself in this commercial cultivation of cannabis".
6 During the course of his submissions as to sentence, counsel for the appellant informed the Court that the appellant became involved in the cultivation when an acquaintance requested his permission to use parts of his house and the shed and the carport "to do a little business". As consideration for the use of the premises, the acquaintance offered to take over the rent and provide the appellant with cannabis for his personal use. The appellant accepted, and according to him his participation in the cultivation went no further (apart from, to some extent, assisting in
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- keeping the crop of cannabis alive). This was put by counsel for the appellant as follows:
"He had no proprietary interest in the crop itself and his assistance in the crop was to make available those premises which he had leased and had leased to use as his own premises and his own residence and the access to the cannabis. He really didn't understand the serious nature of what he was allowing himself to get involved in."
Counsel summarised the position by saying:
"After the paraphernalia for the cultivation was put in by his acquaintance, [the appellant] effectively in terms of activity in relation to the crop was one of a house-sitter.
He fully admits that his involvement wasn't merely to let people use his garage or whatever part of the other premises they wanted, that he had a limited role in just keeping an eye on what was happening, to make sure that those machines which were supposed to work did work, make sure the pumps kept operating, to make sure that the lights stayed on. As I said to your Honour, effectively he was house-sitting those plants for the few weeks that they were there."
Importantly, counsel for the prosecution accepted the facts so stated by counsel for the appellant.
7 The learned Judge, however, stated expressly that she did not accept that the appellant "was merely a house-sitter". Her Honour sentenced the appellant on the basis that his involvement in the criminal enterprise was greater than merely looking after the house and participating in the cultivation of the crop to the extent stated. The inference to be drawn is that her Honour considered that the appellant stood to gain financially from the cultivation of the cannabis plants to a significant extent. However, in the light of the acceptance by the prosecution of the facts stated by counsel for the appellant, this view of the facts was not open to her Honour. Accordingly, in my view, the criminality of the appellant was significantly less than that assumed by the learned Judge.
8 I turn now to the mitigatory force of the plea of guilty. The appellant was originally charged with conspiracy to cultivate cannabis. The indictment that forms part of the appeal book reflects five charges against the appellant, three of which concerned cannabis. On the day before the trial was due to commence, the appellant agreed to plead guilty to one of
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- the counts relating to cultivation of cannabis and the prosecution agreed not to proceed with the other cannabis counts. The remaining two counts, which were unrelated to cannabis, were adjourned for a separate trial. In dealing with the mitigatory effect of the plea of guilty, the learned Judge said:
"It is suggested that his plea of guilty has saved a good deal of time and expense in relation to his trial on the cultivation of cannabis. However, I note that his plea came on the very day the trial was to commence. … Although I accept the plea of guilty as providing some mitigation, in the circumstances, coming as late as it did, its mitigation is somewhat minor."
Her Honour proceeded to state that she considered a period of three years to be an appropriate starting point for the sentence to be imposed, but reduced that by three months by reason of the plea of guilty.
9 A bare plea of guilty (that is, a plea that is not accompanied by genuine remorse), even when made at the last moment, is a mitigating factor as it avoids the expense of a defended trial, inconvenience to witnesses and delay to other cases in the list. This is so even when the case of the prosecution is strong: Simpson v The Queen (1993) 68 Crim R 439, R v Doyle (1994) 71 A Crim R 360. Of course, the mitigatory effect of such a plea is not as strong as a plea made at the earliest opportunity by an offender who expresses genuine contrition. That is because the earlier the plea is made, the greater the savings to the administration of justice and genuine remorse is an indication of an intention to reform and is conduct that tends to show that the offender is unlikely to offend again: R v Gray [1977] VR 225 at 230 - 231. Thus, the timing of the plea (and the general circumstances of the offence) will have a bearing on the credit to be given therefor: R v Holder [1983] 3 NSWLR 245; R v Bulger [1990] Qd R 559.
10 Where the prosecution has charged an offender with several counts and after a process of negotiation the offender pleads guilty to only some of them and the prosecution withdraws the others, all the relevant circumstances have to be examined with care in order to establish the credit to which the offender is entitled. It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted. Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the
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- prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts with which he is charged to persist in a not guilty plea to all counts. In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity.
11 In the present case I think that the particular circumstances surrounding the making of the plea of guilty were such that a greater discount should have been accorded to the appellant by reason of that plea. The fact is that the appellant pleaded guilty to the offence of which he was convicted as soon as he was informed that it was the only charge he would be required to face. Counsel for the prosecution conceded that the plea of guilty was entered into after the appellant "probably had first ever received something that approached sensible advice in this matter". In my view, it is unrealistic to suggest that the appellant should have pleaded guilty to the charge of cultivating cannabis (of which he was convicted) at a stage when he was facing two other like charges which were subsequently withdrawn. The forensic disadvantages of such a course are obvious and one can well understand the appellant maintaining a plea of not guilty to all counts (until withdrawal occurred), despite personally acknowledging full responsibility for his criminal conduct in regard to one of them and being properly remorseful in regard thereto.
12 In these circumstances, in my view, the appellant was entitled to a greater discount for his plea of guilty than that accorded to him by her Honour.
13 For the above reasons I agreed to the appeal being allowed and agreed that a sentence of 1 year's imprisonment with eligibility for parole be substituted for the sentence of 2 years and 9 months' imprisonment which had been imposed by the learned sentencing Judge.
14 WALLWORK J: On 21 July 1999, this Court allowed an appeal by the appellant and set aside a sentence of 2 years and 9 months imprisonment which had been imposed upon him in the District Court at Perth on 20 April 1999. In lieu of that sentence the Court substituted a sentence of 12 months imprisonment and ordered that the appellant be eligible for parole. My reasons for agreeing with that decision are as follows.
15 The appellant had originally been charged with conspiracy to cultivate cannabis. He had elected a preliminary hearing on that charge. On the day of the preliminary hearing, being 29 August 1998, the
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- conspiracy charge was withdrawn and other substantive charges, which were later reflected in the indictment which is in the appeal book, were presented against the appellant. The appellant then asked that the matters be dealt with summarily. However we were informed that the learned Magistrate ruled that as the appellant had elected a preliminary hearing, there had to be a preliminary hearing, notwithstanding that the number of cannabis plants enabled the charges to be dealt with in the summary jurisdiction.
16 On the day before the trial was due to commence in the District Court the appellant agreed to plead guilty to count 3 in the indictment. It was agreed by the prosecution that counts 2 and 6 would not be proceeded with. Counts 4 and 5 to which the appellant had pleaded not guilty and which did not concern cannabis were adjourned for a separate trial.
17 The result was that the appellant was to be sentenced on count 3 alone. That charge was that on 22 August 1996 the appellant and another had cultivated a quantity of cannabis plants with intent to sell or supply cannabis to another.
18 It was contended at the hearing of this application that the appellant had pleaded guilty to the charge in count 3 at the first reasonable opportunity because he had originally been over-charged. There had then been discussions between the appellant's legal representatives and the DPP's representatives. It had been agreed that a plea to count 3 on the indictment would dispose of all charges concerning cannabis. It was conceded by the prosecution counsel before the learned Judge that the appellant had pleaded guilty to the relevant charge after he had obtained sensible legal advice.
19 At the time of sentencing the Judge said that the offence had taken place on 22 August 1996 at the home of the offender in Duncraig. The offender had entered into a tenancy agreement for the premises in early February 1996 and had then indicated to the owner of the premises that he wanted total privacy and not to be disturbed. When police executed a search warrant on 22 August 1996, they found a sophisticated hydroponic cannabis crop in the carport consisting of 17 cannabis plants up to a metre in height. The grow lights were powered by bypassing the meter and connecting to the mains. The learned Judge said it was obvious that there had been a significant investment in the operation. In a bedroom at the premises a further 25 cannabis plants, ranging from 6 inches to a foot in height, had been found growing in pots. The offender's fingerprints had been found on a globe above one of the cannabis plants, on a timing
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- switch and on a double adaptor. Cannabis stalks from prior cultivations were located out the back.
20 The Crown had submitted to the learned Judge that the appellant had been one of the cultivators of the crop, although not necessarily the only person implicated in it.
21 The appellant was then a 31 year old man with a brief prior record of convictions including one count of possession of cannabis in 1989 plus alcohol related driving offences in 1996 and 1997. The learned Judge said that after leaving school the appellant had worked primarily as a driver, driving taxi cabs and trucks. He was qualified to drive road trains, coaches and buses. He had also had experience as a painter and labourer and had been employed in a wildflower occupation.
22 The Judge said that the plea of guilty had been presented on the basis that the appellant was merely a "house sitter" for the cannabis plants. It had been submitted that he had been approached by some acquaintances who had asked him if he would agree to them using his bedroom and carport for the project. They had offered to pay his rent. He was a serious user of cannabis. A number of quantities of cannabis had been found in his bedroom, on the coffee table and in the linen cupboard. It had been suggested in mitigation that he had had no proprietary interest in the crop itself or in the elaborate set-up accompanying it. He had been merely keeping an eye on what was happening and had not been directly involved in the cultivation.
23 The learned Judge said that the appellant had originally been charged with conspiracy to cultivate cannabis. The Judge said that it had been suggested that his plea of guilty had saved a great deal of time and expense in relation to his trial. His Honour said:
"However I note that his plea came on the very day that the trial was to commence."
24 The learned Judge said:
"Although I accept the plea of guilty as providing some mitigation in the circumstances, coming as late as it did, its mitigation is somewhat minor."
25 The learned Judge said that there seemed to be little in the way of remorse other than the plea of guilty which was accepted as a sign of some remorse. The appellant was a cannabis user. He had allowed his
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- home to be used in order to have his rent paid. He had been quite content to be involved in what was obviously a commercial cultivation of cannabis which would place a large amount of cannabis in the community. In those circumstances, the matters in mitigation did not assist the offender to any great extent.
26 The learned Judge said that she did not accept that the appellant had been merely a house sitter. He had been the only occupant of the premises. It was accepted that he was a cultivator of the crop, although not necessarily the only person implicated, nor the principal offender.
27 The learned Judge said that it had been a substantial crop. 42 plants had been found on 22 August. The commercial nature of the cultivation was apparent from the sophisticated paraphernalia associated with it. It was in no way like a backyard operation. It had been a moderate commercial cultivation of cannabis to which the appellant had been a party. The Crown had led evidence that each of the cannabis plants when mature, would produce up to half a kilo of high quality cannabis. When located the plants had not been fully mature. The Crown had suggested conservatively that each would produce 300 grams of cannabis leaf valued at $25 a gram. The value of the plants in the carport on that basis would be $127,500. It had also been contended that the 25 small plants, had the cultivation not been interrupted, would have eventually produced cannabis conservatively valued at $187,000.
28 The learned Judge said that in all the circumstances, and having regard to previous decisions, a sentence of 3 years imprisonment was an appropriate starting point. Her Honour said:
"I am prepared however to reduce that, not substantially, but to reduce it because of the plea of guilty. I would reduce the sentence by 3 months to 2 years and 9 months imprisonment."
29 On the hearing of this application, counsel for the appellant contended that the appellant had been a house sitter for this "smallish plantation" which had involved 42 plants. His return would only have been his rent and enough smoking cannabis for his own purposes. It was submitted that he had been sentenced on a far more serious basis than that. It was conceded that he may have tended the plants by watering them, but it was said that there was no suggestion that he had installed the equipment or that he had had a proprietary interest in the crop. It was submitted that his part in the offence had not been that of a person who had planted the plants and tended them. Rather he was a person who had
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- permitted his house to be used on the promise that the other offender would pay his rent and the appellant would have enough cannabis to smoke. It was submitted that there had been no evidence that the house had been obtained for the purpose of growing cannabis. The house had been rented without subterfuge. The plants had only been growing there for about eight weeks or so.
30 It had been submitted to the learned Judge that the gain to the appellant had been primarily access to good quality cannabis (as much as he could smoke) whilst the growing was proceeding. It was conceded that the appellant had had a limited role in keeping an eye on what had been happening; making sure that the machines which were supposed to work, did work, that the pumps kept operating and that the lights stayed on. The learned Crown Prosecutor had conceded that the Crown "won't, as it were, buy into anything that has been put to Your Honour."
31 It was submitted to this Court that it had been accepted by the Crown that it could not prove anything beyond the fact that the appellant had been the lessee of premises in which cannabis had been growing. That the Crown could not disprove the allegation that the appellant was doing what he was doing for somebody else whom he had not been prepared to name. The learned prosecutor had said:
"The Crown as I said accepts and the information at its disposal, if I can put it like that, is that he was not the only person involved. The Crown could not disprove, no, that he was the minder as has been put, the house sitter in this matter and indeed that would readily accord with information at the Crown's disposal."
32 Before this Court it was submitted for the appellant that the learned Judge in rejecting the notion that the appellant had been a house sitter, had given him a far greater interest in the cultivation than the limited interest which had been agreed upon.
33 It was submitted that in going beyond the concessions which had been made by the Crown, the learned Judge had not accorded the appellant procedural fairness by, for example, advising counsel that her Honour was not minded to accept what had been said for given reasons and then asking for submissions on that question. That there was an identifiable error which had caused gross detriment to the appellant.
34 It was submitted that the appellant had been presented on the basis that he had had no proprietary interest in the venture at all. His
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- expectation had been free rent and enough cannabis to smoke. That had been accepted by the Crown. That criminality put him in a different category to that which had been discussed in the decision in Kennedy v R, unreported; CCA SCt of WA; Library No 980145; 4 April 1998 where the offender had received a sentence of 12 months for a plantation which had not been at his house, plus 2 years imprisonment for a plantation at his house, but of which he had been the proprietor - both of the house and the crop. In this case the biggest plants had been up to a metre. They had varied from something like 5 cm upwards. Had the matter been dealt with summarily, the maximum sentence would have been 4 years imprisonment or $5000, or both.
35 The appellant laid great store on the proposition that he had originally been faced with a charge of possession for sale or supply of 300 grams of cannabis. That charge had been not proceeded with. There had also been other cannabis found at the house, being leaf material which had been the subject of a count in the indictment on which a nolle prosequi had been presented. It was submitted that the learned sentencing Judge had not taken account of those matters after the plea of guilty, which on the Crown concession had been made "as soon as he got sensible legal advice." There had been agreement as to the basis on which a plea would be entered, namely the lodging of the nolle prosequis. It had to be remembered that the appellant had originally been charged with quite a broad ranging conspiracy.
36 It was submitted that the appellant had pleaded guilty at the earliest reasonable opportunity - if reasonable opportunity encompasses the ability to have sensible legal advice and sensible negotiations. It was also submitted that the Crown had accepted that the appellant had accepted sensible legal advice when he had received it. Finally, it was submitted that the learned sentencing Judge had been wrong in minimising the degree of mitigation by saying that the appellant had only pleaded guilty on the last day before the trial was due to start. The real position was that on the day previous to the trial, knowing what would happen with respect to the other charges, the appellant had pleaded guilty at the first opportunity. The Crown had indicated that it would proceed no further on counts 2 and 6 on the previous day.
37 One of the primary contentions for the appellant was that the offence had not been an enterprise set up by the appellant to reap profit from whatever potential profit there might have been. It was said that that was the difference between this case and Kennedy (supra).
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38 It was pressed for the appellant that he was 31 years of age with some previous minor convictions. He had held down significant lengthy employment. Excellent character references had been put forward on his behalf. He was a man who had worked hard and would continue to work hard when permitted to. He had not been living off illegal activities. It was not without significance that the offence had occurred in 1996, which had been some time before heavier sentences had begun to be imposed for cannabis offences. It was submitted that Mr Kennedy had received a sentence of 3 years imprisonment for his own plantation and 1 years imprisonment for his connection with a larger plantation. Kennedy's participation had been of a greater kind.
39 It was further submitted for the appellant that the learned trial Judge, in taking the view that potentially there would have been 300 grams of cannabis recovered per plant at $25 a gram, coming to somewhere in the vicinity of $315,000, had taken a wrong approach. There had been no real evidence as to the value of "these small plants" and that the calculations had not been based on acceptable evidence. It had not been the appellant's crop. There had been no real analysis as to whether the plants were female or male. That would have made a big difference in the end. It was contended that there had been no satisfactory evidence of the potential yield with respect to the plants concerned.
40 It was submitted that the sentence in this case, indicated that the learned Judge had taken a more serious view of the criminality than should have been taken. That was revealed by her Honour's comment that "it was a moderate commercial cultivation of cannabis to which this offender was a party." Following that remark her Honour had referred to the proposed value of the crops being $127,500 for the plants in the carport and a further $187,500 for the plants in the bedroom. Having compared the appellant's case to that in Kennedy, the learned Judge had said:
"I note that in Kennedy's case the offender Kennedy had pleaded guilty at the earliest opportunity and had substantial mitigating matters to take into account. In this case having considered the size and nature of this cultivation of cannabis, it seems to me that a sentence of imprisonment is the only appropriate disposition. In considering the length of term of imprisonment, I consider a period of 3 years to be an appropriate starting point. I am prepared however to reduce that not substantially, but to reduce it because of the plea of guilty. I
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- would reduce the sentence by 3 months to 2 years and 9 months imprisonment."
41 It was contended for the appellant that the maximum penalty, had the matter been dealt with on a summary basis, was a term of imprisonment for 4 years, with or without a fine, if there had been under 100 plants involved. It was submitted that that was not a bad indication of the way a plantation of this size should be treated.
42 When this case is compared with the decision in Kennedy where the appellant had admitted to being a primary offender and to growing 27 cannabis plants for the purpose of raising money, at premises which were owned and occupied by him, and he was imprisoned for 2 years, it can be seen that that case was a more serious offence than this one.
43 In Kennedy, Malcolm CJ said at 14 of his reasons:
"In Stoll at 144, Brinsden J highlighted the difficulty of comparison of facts of different cases, particularly in the context of assessing 'the size of the enterprise as to whether it is small or large, backyard or commercial.' In Marchesano at 373 per Malcolm CJ it was made clear, in the context of a review of the authorities and the sentences commonly imposed, that 'no hard and fast rule can be laid down.'
44 Accepting the learned Chief Justice reasons, and looking at the matter from an overall point of view, an appropriate sentence in this case would have been a sentence of imprisonment for 1 year with eligibility for parole. That is why I agreed to the appeal being allowed and that sentence being substituted for the sentence of 2 years and 9 months imprisonment which had been imposed by the learned sentencing Judge.
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