Bropho v Harrison
[2013] WASC 250
•5 JULY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BROPHO -v- HARRISON [2013] WASC 250
CORAM: HALL J
HEARD: 27 JUNE 2013
DELIVERED : 5 JULY 2013
FILE NO/S: SJA 1066 of 2013
BETWEEN: LYNETTE ANNE BROPHO
Appellant
AND
MARK JAMES HARRISON
First RespondentSILVIA HOLDWAY
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R D YOUNG
File No :PE 51616 of 2012, PE 51713 of 2012, PE 21720 of 2013
Catchwords:
Criminal law - Appeal against sentence - Breach of move on orders - Carrying an article with intent to cause fear - Whether sentences of imprisonment manifestly excessive - Whether 7 months' imprisonment infringed totality principle - Whether circumstances of socioeconomic disadvantage taken into account
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Sentences imposed by magistrate set aside
Appellant to be resentenced
Category: B
Representation:
Counsel:
Appellant: Mr D Brunello
First Respondent : Ms A E Johnson
Second Respondent : Ms A E Johnson
Solicitors:
Appellant: Aboriginal Legal Service (WA)
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Durward v Belton [2012] WASC 479
Korhonen v Hugo [2012] WASC 5
Koryiom v The State of Western Australia [2011] WASCA 226
McDougall v The State of Western Australia [2009] WASCA 232
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Neal v The Queen (1982) 149 CLR 305
R v Churchill [2000] WASCA 230
R v Fernando (1992) 76 A Crim R 58
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458
HALL J:
Introduction
The appellant is a homeless indigenous woman with a chronic substance abuse problem. She has a long history of committing offences of a public nuisance nature. Almost invariably these offences have resulted in small fines.
On 6 May 2013, she was sentenced to a total effective sentence of 7 months' imprisonment for two offences of failing to comply with a move on order and one offence of carrying an article with intent to cause fear. That comprised 6 months' imprisonment for the carrying an article offence and 1 month's imprisonment on each of the breach of move on order offences, one of the latter sentences being cumulative. She now appeals against those sentences.
The grounds of appeal are that the individual sentences are manifestly excessive, the total effective sentence does not bear a proper relationship to the overall criminality and that the magistrate failed to take into account factors personal to the appellant, in particular her acute position of socio‑economic disadvantage and substance addiction associated with her Aboriginality.
For the reasons that follow, I am satisfied that the appeal must succeed. In summary that is because the circumstances of the offences of breaching the move on orders did not justify the imposition of sentences of imprisonment. If those sentences are set aside the remaining sentence of 6 months' imprisonment for the offence of carrying an article with intent to cause fear cannot stand. This is because sentences of 6 months' imprisonment (or less) are prohibited: s 86 Sentencing Act 1995 (WA). Thus even accepting the seriousness of that offence that sentence must also be set aside.
There is another factor which is of significance in the outcome of this appeal. It is the extent to which the appellant's past history of similar offending was relevant. A more serious penalty than offences deserve cannot be justified on the basis of an offender's past history. Furthermore, whether a sentence of imprisonment would act as a more effective personal deterrent was a question that could only be answered having regard to the appellant's socio‑economic circumstances.
The causes of the appellant's behaviour were never ones that were likely to be adequately addressed by the criminal law. Her past offending was more likely to be a product of social disadvantage than any disrespect for the law. The appellant was one of those offenders whose behaviour is caused by deep‑seated problems which the criminal law has no power to address. This may be a cause of significant frustration for a magistrate. It may seem futile to impose fines on people like the appellant who continually reoffend in the same manner. However, if that offending is not in itself deserving of imprisonment it is wrong to use such a sentence in order to try to achieve some socially desirable change in behaviour.
The facts
At about 1.50 pm on Sunday, 28 October 2012, the appellant was outside premises in Barrack Street, Perth. Police had reason to speak to her regarding her behaviour and served her with a move on order. There was no indication what it was that first brought the appellant to the attention of the police.
The order required the appellant to leave the location where it was served and remain beyond a distance of 1 km from that location until 8.00 am on the following day. Thirty‑five minutes later the appellant was located in a car park in Wellington Street that was within the area from which the appellant had been ordered to leave. The car park was approximately 200 to 250 metres from where the move on order was issued. This resulted in the appellant being charged with failing to comply with the move on order contrary to s 153(1) of the Criminal Investigation Act 2006 (WA) (the first MO offence).
At about 6.30 pm on Tuesday, 30 October 2012, the appellant was observed standing on the corner of Barrack Street and Wellington Street, Perth outside the entrance of the Perth train station. She was having an argument with her partner, a homeless man, after having just received a further move on order. The appellant was yelling at her partner and then walked a short distance to a pram which she was using to convey her personal belongings.
The appellant removed a pair of scissors from the pram and then held the scissors up for her partner to see. She walked towards her partner and adopted a fighting stance whilst holding the scissors in her right hand. She continued to yell at her partner and walked towards him waving the scissors from side to side in a slashing motion causing him to retreat and put his hands up defensively. After about 10 seconds the appellant saw police and hid the scissors down her top. Members of the public were present in the area and stopped and watched the appellant. This conduct resulted in the appellant being charged with carrying an article with intent to cause fear that someone would be injured or disabled contrary to s 8(1)(b) of the Weapons Act 1999 (WA).
At about 7.50 pm on 12 April 2013, the appellant was on James Street, Perth. She came to the attention of the police. There was nothing in the facts as read to the magistrate to indicate why, though it was suggested on the appeal that it may have been due to street drinking. She was served with a move on order that required her to move away from Prestige Kebabs on James Street in Northbridge and go beyond a distance of 2 km from that location until 8.00 am on the following day.
At 11.30 pm on the same day, the appellant was observed by police in William Street. This was a location approximately 500 metres in a direct line and approximately 700 metres by foot from the location at which the move on order had been served. This conduct resulted in the appellant being charged with a further offence contrary to s 153(1) of the Criminal Investigation Act (the second MO offence).
Proceedings in the Magistrates Court
The appellant entered pleas of guilty to all charges and appeared in the Magistrates Court on 6 May 2013. There was also an application for a prohibited behaviour order under the Prohibited Behaviour Orders Act 2010 (WA). The magistrate queried whether the appellant was in a fit state to be dealt with. Counsel who appeared for the appellant advised that she was affected by solvents and that he had been unable to obtain cogent instructions. He also advised the magistrate that the appellant was presently homeless and living on the streets but had responded to her bail.
The magistrate was unwilling to deal with the appellant given her intoxicated state. He adjourned sentencing to the following day and remanded the appellant in custody. Before doing so the magistrate commented that 'there's something a little bit futile about just continually imposing fines on Ms Bropho and releasing her back on the streets'.
On 7 May 2013, the appellant appeared for sentencing. In mitigation the appellant's counsel said that the appellant was very sorry for pulling out the scissors. She had not intended or attempted to cause her partner any harm. They had argued because she had wanted him to come with her to 'sleep rough'. As regards the move on order offences, these were said to be a consequence of substance abuse and extended homelessness. Whilst the appellant had been off alcohol for some time, 'sniffing' remained a major issue for her.
The appellant's counsel told the magistrate that the appellant had been homeless for about three years. She had previously had a house in South Perth but had been evicted because her partner would have people around and they would become raucous and out of control. The appellant described her partner as being an alcoholic street man and that she wanted nothing further to do with him. She had recognised that her former partner was 'a trigger for chaos' and that she intended to obtain a violence restraining order against him.
The appellant was said to have a very long term issue with substance abuse. Prior to 7 May 2013 she had been attending a Salvation Army Detoxification Centre. She had taken some steps to try and rehabilitate herself but this was said to be 'a work in progress'. It was said that her goal was to go to a women's refuge in an attempt to get clean in a supportive environment. She had been attending a church in Victoria Park and this was said to show some degree of pro‑social and community contact.
The appellant was on a priority list for a Homeswest home. She was also paying $100 a fortnight from her Centrelink benefits to pay off her accumulated fines.
Whilst the appellant had a long record, the weapons offence was the only incident involving a threat or violence‑related matter since 2011. This was said to show some effort on her part over the previous 12 months to change her behaviour.
Sentencing remarks
Throughout the magistrate's sentencing remarks the appellant interrupted him to express that she was sorry and to plead with him not to be sent to prison. She said that she had been good and did not want to be taken away from her children and grandchildren. I have omitted these interruptions from the following account of what the magistrate said.
His Honour commenced by noting that the maximum penalty for the weapons offence was 2 years' imprisonment and the maximum penalty for the breach of the move on notices was 12 months' imprisonment. He said that whilst such offences were sometimes glossed over as being minor offences, these penalties indicated that it must have been intended that in some circumstances imprisonment would be appropriate.
His Honour said that the purpose of the move on notice provisions was to defuse potentially dangerous situations and they could only work if there was a culture of observance. His Honour then said:
If a person persistently and flagrantly breaches move‑on notices and is plainly not deterred by repeatedly having fines imposed, then imprisonment must come under some consideration. The facts of the offences before me today and your record generally just suggests that you're given move‑on notices, you nod and smile and say, 'Yes, officer, I will do whatever,' and you have no intention at all of ever complying with them and then you're found in the same vicinity a short time later, indicating that you simply don't treat move‑on notices seriously at all (ts 8 ‑ 9).
His Honour said that there were three concerns which arose in respect of the Weapons Act charge:
One is the wielding of a weapon by a person such as yourself who is often affected by substances, so someone who appears from the record to have a somewhat volatile personality and a lack of co‑ordination arising from your substance abuse and therefore you are not someone who should be entrusted with the possession of a weapon that might be capable of causing injury.
…
Secondly, there's the exposure of the public to what was an unpleasant and conceivably traumatising sight and potential danger if anyone were to seek to intervene in the situation. Thirdly, there's a public interest in not having weapons available in public and not having household items adapted for use as weapons.
There's a strong need for deterrence in relation to weapons offences, both personal deterrence and also deterrence generally so that the public understands that it's to be taken seriously. In terms of your record, Ms Bropho, you're not to be resentenced on past matters but it has to be said it's a fairly extraordinary catalogue of a wasted life.
It's 31 pages dating back to the 1980s, convictions as recently as a couple of days ago on 4 May. Your offending throughout 2013 alone has been in January, March, April, May. You've been offending whilst on bail for other offences. You've been offending whilst you've had outstanding warrants against you and the spate of recent convictions and the fact that you have been offending on bail and so on really provides little room for confidence in what your lawyer says that you are trying to address some of these problems and seek rehabilitation (ts 9).
His Honour noted that the criminal record of the appellant included a number of previous offences for failing to comply with a move on notice. He then said:
Now, I accept, Ms Bropho, that the record reflects your lifestyle. It's a very sad situation and a very unfortunate situation but I have to look beyond you personally and look at the interests of the community generally. When I have someone who is nearly 50 years of age with a 30‑year offending history, then in my view if you remain unwilling or unable to take advantage of support and services that are available to you, and rehabilitation available to you, then you remain at risk of reoffending.
So I go through all of that in order to conclude that imprisonment is the appropriate sentence today. The offences are serious and should not be regarded as otherwise (ts 10).
His Honour then said that there was a strong need for personal and general deterrence. In this regard, he noted that the appellant continued to re‑offend including whilst on bail for other offences. His Honour said that the focus must be on protection of the public and on incapacitating the appellant. As regards rehabilitation, his Honour doubted efforts in that regard given that the appellant had been intoxicated when she had appeared in the court on the previous day.
In considering whether a sentence of imprisonment should be suspended, his Honour said that there was 'a total lack of mitigation apart from the pleas of guilty'. He said that he would have imposed a sentence of 9 months for the Weapons Act offence but for the plea of guilty. He then imposed 6 months' imprisonment for that offence, 1 month imprisonment concurrent on the first MO offence and 1 month imprisonment cumulative on the second MO offence. The total effective sentence of 7 months' imprisonment was backdated to commence on the previous day, 6 May 2013.
Grounds of appeal
Leave was granted to amend the grounds of appeal on the hearing of the appeal. The amended grounds are as follows:
1.The sentences of 1 month imprisonment (concurrent) imposed for fail to obey order given by an officer (PE51713/12) and one month imprisonment (cumulative) imposed for fail to obey order given by an officer (PE21720/13) were manifestly excessive, in all the circumstances, in particular having regard to:
(a)The sentences were not commensurate with or proportionate to the seriousness of each offence;
(b)A sentence of imprisonment was not justified or required in respect of each offence, in all the circumstances;
(c)The Magistrate improperly had regard to the criminal record of the appellant, in particular, the Magistrate erred in finding that:
(i)'persistence must be the point at which imprisonment comes to be considered'; and
(ii)'the offences before me today and your record generally just suggests that … you have no intention at all of ever complying with [move‑on notices] and … you simply don't treat move‑on notices seriously at all'.
(d)The Magistrate erred in proceeding on the basis that the 'focus' of the sentencing exercise 'must really be on protection of the public and punishment and really incapacitating you'.
2.The Magistrate failed to take into account factors personal to the appellant, in particular her acute position of socioeconomic disadvantage and her substance addictions associated with her Aboriginality.
3.The sentence of 6 months imprisonment imposed for carried (possessed) an article with intent to cause fear (PE51616/12) was manifestly excessive, in all the circumstances, in particular having regard the matters particularised in ground 1(a)‑(d).
4.The aggregate sentence of 7 months immediate imprisonment does not bear a proper relationship to the overall criminality of the offending behaviour, when the offences are viewed in their entirety and having regard to all the circumstances of the case, including circumstances personal to the offender.
Grounds 1 and 3 - were the individual sentences manifestly excessive?
In order to determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); McDougall v The State of Western Australia [2009] WASCA 232 [12] ‑ [13] (McLure P).
The Weapons Act offence
Section 8(1)(b) of the Weapons Act makes it an offence to carry or possess an article with the intention of using it to cause any person to fear that someone will be injured or disabled by that use. That offence carries a maximum penalty of a fine of $24,000 and 2 years' imprisonment. The maximum penalty was increased from $4,000 or 1 year's imprisonment on 4 December 2009.
There is no established range of sentences for offences of this type. I was referred to a number of other cases involving sentences for breaches of s 8(1)(b) of the Weapons Act. One of these was Koryiom v The State of Western Australia [2011] WASCA 226 which involved a 23‑year‑old man who was found with a kitchen knife tucked into his trousers at a train station. He had three prior convictions for breaching s 8(1) of the Weapons Act and had committed this offence shortly after being sentenced to a conditionally suspended imprisonment order. A sentence of 6 months' imprisonment was held not to be manifestly excessive. Reference was also made to Korhonen v Hugo [2012] WASC 5 which also involved the carrying of a knife. Whilst these cases do indicate that in appropriate circumstances offences of this type can attract sentences of imprisonment, they serve to underline the importance of the particular circumstances of each case.
Cases involving the use of an article to cause fear generally involve items that have a legitimate purpose in a household context. Other offences exist for the possession of prohibited or controlled weapons: s 6 and s 7 Weapons Act. The fact that a person has taken the household item, such as a steak knife or a carving knife, out of their home and into a public place will engage the criminal law. It is not, of course, unlawful to own such items. Rather, it is unlawful to possess or carry such an item with the intention of using it to cause fear that someone will be injured. In respect of offences of this nature it will usually be a relevant consideration that a person has taken an otherwise legitimate article from their home and carried it in a public place.
In the present case, the appellant had no home. There was no suggestion that she had brought the scissors into a public place in order to use them as a weapon. Rather, they formed part of her personal possessions that she conveyed in her pram. This was not an offence that involved any apparent forethought or deliberation. Her use of the scissors was a spur of the moment thing that arose in a context of homelessness and a fractious personal relationship.
One of the factors that the magistrate had particular regard to was that the offence had occurred in a public place and had been observed by members of the public. I accept that conduct of this type is such as to have the potential to cause alarm to members of the public. There is also a risk that violent actions may result in unintended harm to bystanders, particularly if they seek to render assistance. On the other hand, in this case, there was no information in regard to how many people were present and what distance they were from the appellant. It is also relevant to note that the conduct was of relatively short duration and ceased immediately upon the appellant seeing police in the vicinity.
The personal circumstances of the appellant were a relevant consideration in respect of all offences. I will consider these circumstances in more detail in respect of ground 2. Suffice to say, it was not accurate to say that the only mitigating factor was the appellant's plea of guilty. The appellant's homelessness and her chronic substance abuse issues were factors that significantly contributed to this offending conduct. They were factors that made it inappropriate to make assumptions regarding persistent offending and the importance of personal deterrence. Personal deterrence assumes an ability to make choices. It assumes an ability to rationalise and to understand the consequences of repeated behaviour.
The MO offences
Section 153(1) of the Criminal Investigation Act makes it an offence for a person to fail to obey any order given by an officer under the Act. This includes move on orders made under s 27 of the Act. The maximum penalty for failure to comply with an order is a fine of $12,000 and 12 months' imprisonment.
As regards the type of sentences customarily imposed, in Durward v Belton [2012] WASC 479, a sentence of 6 months and 1 day's imprisonment suspended for 12 months for a failure to comply with a move on order was held to be manifestly excessive. The offender in that case was a 23‑year‑old homeless man with an alcohol problem who had pleaded guilty. He had six similar prior convictions. Whilst that case does not establish a range of appropriate penalties, it is indicative that the sentences for the move on order offences in this case were inappropriate.
As regards the seriousness of the move on order offences, it should be noted that in neither case was there any indication of what conduct had brought the appellant to the attention of the police. As the magistrate properly acknowledged, move on orders are used as a preventative measure by the police. However, their efficacy in respect of people who are obviously homeless must be doubted. In any event, there was no suggestion that the appellant had refused to comply with the order or acted in open defiance of the police. Rather, the only allegation in each case was that some time after the order had issued, she had been found within the restricted zone. Given that she is a homeless person with obviously limited means, any expectation that she could vacate an area with particular speed would be unrealistic. It might also be unrealistic to expect that she would have any real ability to understand where the restricted zone extended to. Her understanding was likely to be limited to moving away from the immediate area at which the notice was issued.
There was nothing about the move on order offences in this case that justified a conclusion that the only appropriate penalty was one of imprisonment. The magistrate referred to a prior history of non‑compliance but the fact that there were prior offences does not aggravate an offence, nor is it relevant that past penalties have not achieved their objective: s 7(2) Sentencing Act. In any event the conclusion that the appellant was acting in deliberate defiance of the law failed to take into account the personal factors I have referred to.
The sentences imposed for the MO offences needed to be proportional to the circumstances of those offences. The appellant's prior record did not make those circumstances more serious. The prior record was relevant to the extent that there was an absence of mitigation in respect of good character. However, a sentence should not be increased beyond what is proportionate to the offence in order to extend the period of protection of society from the risk of recidivism on the part of the offender: Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458, 467, 468, 482 ‑ 483 and 495. See also Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 472.
The previous criminal record of an offender may be taken into account in determining a sentence, but it cannot be given such weight as to lead to a penalty that is disproportionate to the gravity of the offence. To do so would be to impose a fresh penalty for past offences: Veen (No 2) (477) (Mason CJ, Brennan, Dawson & Toohey JJ).
The criminal record of an offender may be relevant to show whether an offence is out of character or is an instance of continuing disobedience with the law. If the latter is the case, retribution, deterrence and protection of society may indicate that a more severe penalty is warranted: Veen (No 2) (477). However, consistently with proportionality, that does not mean that a person with a history of offending is liable to receive a sentence that is more severe than the circumstances of the offence could possibly warrant. It simply means that an offender with a relevant prior record may, for the reasons referred to, receive a higher sentence within the appropriate discretionary range for an offence of that type.
Conclusion on grounds 1 and 3
The sentence of 6 months' imprisonment imposed for the Weapons Act charge would not have been open were it not for the cumulative 1 month sentence imposed for the move on order offences. That is because sentences of 6 months or less are prohibited by s 86 of the Sentencing Act. Accordingly, even if it is arguable that the Weapons Act sentence was appropriate, it cannot stand if the sentences for the MO offences have to be set aside.
In my view, when proper regard is had to all of the relevant circumstances, the sentences imposed in this case for the MO offences were manifestly excessive. The sentence imposed for the Weapons Act offence was arguably within the appropriate discretionary range for an offence of this seriousness, however that sentence must also be set aside bearing in mind the prohibition on stand‑alone 6‑month sentences of imprisonment. Accordingly, leave to appeal must be granted in respect of grounds 1 and 3 and the appeal allowed.
Ground 2 - failure to take into account personal factors
The appellant submitted that her impoverished circumstances and environment are associated with her Aboriginality. It was said that her socio‑economically disadvantaged background should have been taken into account in mitigation of penalty. The magistrate must have failed to take this into account as he said that there were no mitigating factors other than the appellant's plea of guilty.
Sentencing principles are to be applied irrespective of the ethnicity of a particular offender. However, in imposing sentences courts are bound to take into account all material facts including those facts which exist only by reason of the offender's membership of an ethnic group: Neal v The Queen (1982) 149 CLR 305, 326.
The Aboriginality of an offender may explain or throw light on the particular offence and the circumstances of the offender. It is proper for the courts to recognise the problems of alcohol abuse and violence which exist within Aboriginal communities and which require more subtle remedies than the criminal law can provide by way of imprisonment: R v Fernando (1992) 76 A Crim R 58 and R v Churchill [2000] WASCA 230.
In Fernando, Wood J said that in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt, yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
In the present case I accept that the appellant's offences were a consequence of her long term issues of substance abuse which, in turn, are particular problems in the Aboriginal community of which she is a part. Her Aboriginality explains and throws light on the particular offences and her circumstances. The appellant's position of disadvantage and her addictions were factors that had to be taken into account in order to have a proper understanding of the seriousness of her offending. The magistrate erred by failing to take into account these factors. Accordingly, leave must be granted in respect of ground 2.
Ground 4 - totality
The appellant asserts that the magistrate erred in law when he imposed terms of immediate imprisonment and thereby imposed a total effective sentence that was disproportionate to the total criminality.
The totality principle requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences viewed in their entirety having regard to the circumstances of the case, including those referable to the offender personally: Moody v French [2008] WASCA 67; (2008) 36 WAR 393.
It is unnecessary to consider this ground in any detail having decided that grounds 1 and 3 should succeed. However, even if I was wrong in respect of whether the individual sentences were manifestly excessive, I would grant leave in respect of this ground on the basis that the total effective sentence was one that was disproportionate to the total criminality. In particular, the move on offences were not offences that could be viewed as serious of their type and even if the Weapons Act offence was an offence that could potentially attract imprisonment, it was not one that justified a sentence of any more than that imposed by the magistrate. The overall criminality could not, therefore, justify a sentence of 7 months' imprisonment.
Conclusion
Leave to appeal in respect of each of the grounds must be granted and the appeal allowed. The sentences imposed by the magistrate will be set aside and the appellant resentenced.
In coming to these conclusions I acknowledge that the magistrate was presented with a particularly difficult sentencing exercise. The appellant was one of those intractable offenders for whom the criminal law has no easy answers. The futility of imposing fines for repeated offending can cause a search for a more effective option. However, in doing so, it is important to always ensure that the penalty imposed is appropriate for the offending conduct in question.
On the hearing of the appeal, counsel for the appellant was not in a position to address me in regard to resentencing in the event the appeal was allowed. Having regard to the appellant's past issues with homelessness and substance abuse, I was concerned to be properly informed as to this. In resentencing it will be relevant to take into account the fact that the appellant has served a period in custody pending the resolution of this appeal.
Orders
1.Leave to appeal in respect of grounds 1 to 4 granted.
2.Appeal allowed.
3.Sentences imposed by the magistrate set aside.
4.In lieu thereof, the appellant to be resentenced.
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