DPP v Lepoidevin
[2003] VSCA 61
•27 May 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 225 of 2002
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| DALE CAREY LEPOIDEVIN |
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JUDGES: | PHILLIPS, C.J., VINCENT, J.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 March 2003 | |
DATE OF JUDGMENT: | 27 May 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 61 | |
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Criminal Law – Sentencing – Intentionally causing serious injury – Recklessly causing serious injury – Director’s appeal – Considerations applicable – Double jeopardy – Catastrophic consequences – Absence of intention to cause injuries of the actual character or magnitude caused not mitigating factor – Sentences manifestly inadequate – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C. (DPP) Mr B. Kayser | K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | Mr P.F. Tehan, Q.C. Mr C.B. Boyce | Byrne & Clark Solicitors |
PHILLIPS, C.J.:
Utilising the process long sanctioned by authority – identification of the relevant circumstances and examining the faces of the sentences, I agree with Justice Cummins that the sentences imposed on counts 1 and 2 were each manifestly inadequate. I also agree with the re-sentencing of the respondent proposed by his Honour.
I would respectfully agree with his Honour’s categorisation of the seriousness of count 1 and there can be no doubt of the extreme gravity of the respondent’s conduct in the commission of count 2. His counsel on the plea, who doubtless saw the value to his client of an objective approach, addressed a submission earlier made by the Crown Prosecutor. He said:
“Can I say at the outset, Your Honour, that I don’t dispute what my learned friend said about this (count 2) being at the top end of the range.”
Upon the learned judge raising a query counsel responded:
“Well, it’s a serious matter as could be encompassed by that section…”
He later added:
“As my friend indicated…it (count 2) culminated in Angela being on the ground and my client – rather than kicking her in the head – actually stomping on her head with such ferocity that those marks that were indicated to Your Honour were imprinted on her face.”
The learned sentencing judge appears to have laid some store on the respondent’s conduct not being premeditated. Indeed, it was not planned but neither was it a case of a single blow struck in anger. It was violence repeatedly pressed home – first by striking her head on the bench, then by a punch to the face, then by a kick to her ribs and then by stomping on her head. This last incident occurred when her head was on the ground (as the respondent’s counsel admitted) and when she was no longer in a position or condition to defend herself (as his Honour found). There can be no doubt that, with her head in that position, the respondent intended to cause her extreme pain and suffering.
With their consent, obtained during argument on this appeal, I now propose to refer to the contents of the Victim Impact Statement of Angela’s parents made pursuant to s.95A(3) of the Sentencing Act.
With simple eloquence they described their daughter’s achievements. While still at school, she did a modelling course and was complimented on her posture and her walk. As to her primary schooling they write:
“Angela was a beautiful, determined and intelligent little girl…she wanted to be a policewoman, then by the end of primary school, a lawyer or D.A. Then the last couple of years ago a psychologist or a criminologist – but she didn’t think she was smart enough. It wasn’t until late last year she was seeing that her parents and teachers were right in saying that she could be anything she wanted to be.”
The parents relate how she had been voted into the VCE leadership group at the school as a leader and continued:
“She was a very keen sportsperson being record breaker in high jump and representing her school in high jump, swimming and netball, playing and umpiring netball and basketball domestically as well as playing squad basketball and representing her town Benalla”.
They then went on to relate:
“She also had a casual position at BILO Supermarket after school and the girl in charge used Angela as an example on how every body should dress. She was a beautiful tall, independent girl, with a caring nature and a soft spot for children and people with problems or less fortunate. She was full of fun and life…”
They further stated:
“You try to protect your children at all cost, we walked them to their schools, drove them to friends and that is where things go wrong as you cannot choose their friends. Surely however, it is not too much to expect that a girl should be able to be with her friends and not be subject to any fear, harassment, and betrayal of trust or as in this case an act of brutal violence.”
They finished by saying:
“Anj will more than likely be dependent for the rest of her life. We can’t help thinking what will happen to her if something happens to us?”
The statement also graphically describes their horror when they realised at a hospital that their daughter had a shoe imprint on her face. A veritable parents’ nightmare.
VINCENT, J.A.:
I agree with the disposition of this matter as proposed by Cummins, A.J.A. for the reasons advanced by him in his judgment which I have had the opportunity of reading in draft form.
CUMMINS, A.J.A.:
This is an appeal by the Director of Public Prosecutions pursuant to s. 567A Crimes Act 1958 from sentences imposed upon the respondent, Dale Carey Lepoidevin, in the County Court at Shepparton on counts of recklessly causing serious injury and of intentionally causing serious injury. The respondent pleaded guilty to those counts (and to some summary offences not the subject of appeal) on 30 July 2002. The offence of recklessly causing serious injury was committed at Benalla on 1 January 2002 upon a male victim, Kenneth Linley Shand. The offence of intentionally causing serious injury was also committed at Benalla, on 7 March 2002, upon a young woman, Angela Michelle Barker, with tragic consequences. Related to the 1 January 2002 offence were summary offences of unlicensed driving, driving in a manner dangerous, and driving an unregistered vehicle.
All the matters came on for hearing in the Shepparton county Court on 30 July 2002. The respondent pleaded guilty to all counts. At the conclusion of the hearing, the learned sentencing judge reserved the matters for consideration. He imposed sentence on 20 August 2002. The sentences imposed were as follows:
(i)On count 1, recklessly causing serious injury to Kenneth Linley Shand, 9 months’ imprisonment;
(ii)On count 2, intentionally causing serious injury to Angela Michelle Barker, 7 years’ imprisonment;
(iii)On the summary offences: unlicensed driving, one month’s imprisonment; driving in a manner dangerous, three months’ imprisonment and licence cancelled for one month; and driving an unregistered vehicle, fined $580.
The learned sentencing judge ordered that six months of the sentence on count 1 be served cumulatively upon the sentence imposed upon count 2, making a total effective sentence of 7½ years’ imprisonment. The judge fixed a non-parole period of five years' imprisonment. Pursuant to s. 18 Sentencing Act 1991 the period of 165 days pre-sentence detention was declared as already served under the sentences imposed.
The Director, by notice filed 19 September 2002, has appealed from the sentences imposed upon counts 1 and 2 and the total effective sentence and the non-parole period, on the ground that each is manifestly inadequate. Seven particulars asserting sentencing error are set out in the notice of appeal, namely that the judge failed adequately to reflect the gravity of the offences, failed sufficiently to take into account general and specific deterrence, gave excessive weight to mitigatory factors, gave insufficient weight to the respondent’s prior criminal history, gave insufficient weight to the permanent and debilitating nature of the injuries sustained by the victim in count 2, and found as a mitigating factor that the respondent had not intended to cause “injuries of the character or magnitude” actually sustained by the victim in count 2.
The respondent was born on 1 October 1981. He was 20 years of age at the time of the offences and at the time of sentence.
At the plea hearing, the respondent admitted 53 findings of guilt and 13 prior convictions arising from four court appearances from December 1996 to February 2002. In the Benalla Children’s Court on 3 December 1996 he was found guilty of numerous theft and related charges and released on a 12 months’ good behaviour bond. In the Wangaratta Magistrates’ Court on 22 June 2000 he was convicted of causing injury recklessly, unlawful assault, assault by kicking, and other charges including assaulting a police officer. The respondent was sentenced to be released upon a community based order for six months, with 100 hours’ unpaid community work and $9,741 compensation order as special conditions. The respondent breached the community based order, was given a suspended sentence of imprisonment which he also breached, and ultimately no further order was made. In the Benalla Magistrates’ Court on 3 October 2000 the respondent was convicted of assault, drunkenness, resisting arrest and other offences and sentenced to one month’s imprisonment suspended for 12 months which sentence he breached and was then fined $500. In the Benalla Magistrates’ Court on 26 February 2002 the respondent was again convicted of drunkenness, hindering police and driving offences and was fined $850.
The victim in count 1 was Mr Kenneth Shand, a disability instructor, aged 54 years. The circumstances of the offence were as follows.
Approximately 30 minutes into the new year of 2002, a group of adults including Mr Shand were celebrating the New Year at 98 Benalla Street, Benalla and heard sounds of violence from the adjoining premises, 100 Benalla Street. The sounds were of argument and of shouting. The adults immediately went to the premises. A female resident of No. 98, who was a personal care attendant, and Mr Shand were first to the front door of No. 100. A resident at No. 100, 16 year old Angela Barker, in a distressed state, said "Help me, Ken, my boyfriend's bashing me up." She pointed to her right cheek which was swollen and puffy. Ms Barker resided at No. 100 with her family, who were not then present. She ran sobbing into the arms of her female neighbour. Mr Shand then held the front screen door closed. The respondent in an angry mood then appeared, kicked open the screen door Mr Shand was trying to hold closed, and attacked Mr Shand. Mr Shand had not uttered a word to the respondent or raised a finger to him. He did not anticipate the attack. The respondent was not known to him. The respondent lunged at Mr Shand, struck him with his fist and flung him across the verandah. Mr Shand fell to the ground. The respondent then straddled Mr Shand while he was on the ground and repeatedly punched him including when Mr Shand lapsed into unconsciousness. Another woman who had arrived called out to a male to call the police. The respondent then desisted from his attack upon the unconscious Mr Shand, went back inside No. 100, and shortly thereafter drove off on his motorbike. That driving was the subject of the summary charges. Local police arrived at the assault scene shortly thereafter. On 4 January, 2002 the respondent was arrested in Benalla and later charged with what ultimately became count 1 and with the traffic offences.
In the meantime, at the scene, Ms Barker, in a distressed state, kept apologising to Mr Shand for the respondent's conduct. She was questioned by attending police and reported the assault upon her. However, the next day she withdrew her complaint. In a statement to police on 2 January 2002 withdrawing her complaint she said:
"I am most satisfied with the way this matter has been handled by the attending police. I am making this statement through the exercise of my own free will and not under duress or intimidation."
Mr Shand was helped from the scene. He attended a local medical practitioner that day and thereafter progressively underwent medical and psychological treatment. Initially he was suffering shock, pain, bruising and abrasions to the face and neck, and numbness. During continuing medical treatment an M.R.I. scan revealed a fractured cheekbone. At the date of the plea hearing he was suffering from continuing numbness in the left cheek and jaw, facial nerve damage, neck stiffness and difficulty chewing food. His pain and limitation of movement prevented him from driving a car. He was suffering significant emotional withdrawal and anxiety, and often had to retire early in the evenings to bed.
The maximum penalty on count 1, recklessly causing serious injury, is 15 years' imprisonment. The learned sentencing judge on count 1 sentenced the respondent to 9 months' imprisonment, six of which was to be cumulative upon the sentence on count 2, to which I now turn.
The violence inflicted by the respondent upon Mr Shand was but a limited harbinger of that he was soon to inflict upon the 16 year old Ms Barker; and the deleterious consequences upon Mr Shand, serious though they were, were but a shadow of the tragedy that was to befall her.
The relationship between Ms Barker and the respondent continued on an intermittent basis. On 7 March 2002 they attended the premises of Clint Godwin in Benalla, arriving together at about 5.30 pm. The two of them, with others, consumed beer. At about 7.30 pm Ms Barker left and returned a few minutes later with two small children. Mr Godwin said that it was inappropriate that the children remain there and so Ms Barker left followed by the respondent. Mr Godwin followed them to the front door of his premises. While he was standing at the front door the respondent without warning hit Mr Godwin in the face with his fist. Mr Godwin was forced back by the force of the blow and was a bit stunned. He then followed the respondent out the front and confronted him about the reason for the assault. The respondent said he had hit Mr Godwin because he was "smirking at my girlfriend and for being a smartarse." Mr Godwin stated that he had done nothing to provoke the assault. The respondent and Ms Barker left, the time then being about 8.00 pm, their destination being Ms Barker's home. She was not to arrive.
The respondent and Ms Barker proceeded through a park at the rear of the Safeway Store, Benalla. An argument ensued between them. The respondent then viciously attacked Ms Barker. He grabbed her by the throat and banged her head on one of the metal park benches, punched her to the head, squeezed her and dragged her to the ground. When she was on the ground he kicked her in the ribs and in the head. He stomped on her face. He then left her prostrate on the ground. He ran off towards a school nearby and called out to a young boy on a bicycle to call 000. The boy went to the service desk at Safeway and asked for 000 to be called. The respondent returned to the scene and leant the prostrate Ms Barker against a pole. She was coughing blood and shaking. Staff from Safeway rapidly appeared. The respondent called "Have youse I called anyone yet" and when responded to in the affirmative the respondent ran off, saying "Youse can fucking look after her then."
The prostrate Ms Barker had been so brutally assaulted that at first the Safeway staff could not tell whether she was male or female. Her sex was deduced from a bellybutton ring. Her face was grossly swollen and bloodied. There was blood coming from her right ear and her mouth. Her teeth were tightly clenched and she was emitting a screeching sound. She was continuously convulsing. Her left arm and foot were blue. There was a pool of blood where she was lying. One young person rolled her onto her side. Another held her head. Another called the ambulance. All in the absence of the respondent, and all in the absence from him of any history which might assist in her medical treatment. The Safeway staff thought Ms Barker was suffering from an epileptic fit.
Police, then ambulance, then more police arrived. While Ms Barker was being treated at the scene by ambulance officers there was a revving and screeching and the respondent returned in a vehicle. A police officer asked "What's going on?" The respondent pointed towards Ms Barker and the ambulance crew and said: "I'm involved in this shit."
Ms Barker was removed and transported urgently by road to the Wangaratta District Hospital and then by air ambulance to the Royal Melbourne Hospital. She had suffered severe and multiple injuries, including fracture to the base of the skull, right mandibular fracture, intracerebral petechial haemorrhages and diffuse brain axonal injury shearing. Later forensic analysis demonstrated that the respondent had stomped with his shoe upon the face of Ms Barker as she lay prostrate, so hard that he injured his right foot. The shoe impression was visible on Ms Barker's face.
The respondent was arrested at the scene. He was conveyed to the Benalla Police Station and interviewed. At about 10.30 pm he was breathalysed giving a reading of 0.03% blood alcohol concentration. In his police interview he said that he decided to go back to the scene and hand himself in. He blamed Ms Barker for the argument between them in the park, maintaining she was the aggressor and he the peacemaker. He said despite his pacific efforts she continued "trying to stir me up" while "I was just trying to ignore it all." He said she had attacked him and headbutted him and in response to her behaviour he hit her, squeezed her, and kicked her in the side of the head. He said he intended to hurt her. He said he banged her head once on the metal seat. He said that he left and got his mother's car and drove around wanting to kill himself and then returned to the scene. He was charged with intentionally causing serious injury.
The respondent's story of Ms Barker being the physical aggressor was plainly untrue and self-serving. It is beyond belief that the 16 year old would choose an ill-lit park with no help or protection available to attack the respondent whom she knew was violent and whom she had just seen assault another adult male.
The respondent's answers in police interview were devoid of remorse.
On 7 March 2002 the respondent had been drinking but had not ingested illicit drugs.
Medical evidence before the learned sentencing judge established that Ms Barker suffered severe brain injury in the assault by the respondent. Her initial Glasgow coma score was 3, which signified the most severe coma. CT scan revealed large subcutaneous bruises and small haemorrhages affecting her frontal lobes, temporal lobes and upper brain stem. As already stated, she suffered fracture of the base of the skull and of the right mandible and diffuse brain axonal shearing injury. Ms Barker was treated as an in-patient at the Royal Melbourne Hospital from 9-24 April 2002 and then transferred to Melbourne Extended Care and Rehabilitation at Parkville where she remained. As a consequence of her brain injury, Ms Barker had (and shall continue to have) severe generalised spasticity. She had limited voluntary movements of her right upper limb. She was able to make groaning noises but was unable to form a word. She had a peg tube for feeds, placed directly into the stomach. She required full nursing care including all bathing and continence needs. She was able to track with her eyes and recognise her family. She could maintain eye contact at times. Her prognosis was guarded, it being very difficult to predict recovery, and she will need medical help for many years.
Victim impact statements were filed by Mr Shand, the victim on count 1 and by the parents of Ms Barker, on count 2. Ms Barker's parents' victim impact statement, filed on behalf of the whole family, was a most moving and impressive document. Her loving family were, and remain, grievously and profoundly afflicted by her parlous state. The victim impact statement revealed a previously outgoing, happy daughter, who was a representative of her school and city in numerous sports, and who in 2002 had been voted by her peers as a school leader.
The respondent, as I have stated, was but 20 years of age at the time of the offence upon Ms Barker. Plainly, his youth was of central relevance in sentencing, both for its own sake and because of the especial importance with young offenders of rehabilitation. The respondent left school during Year 11 at Benalla High School and undertook a variety of short term labouring jobs. His parents were divorced and he left home at 16 years but returned to live with his mother shortly before the end of 2001. He had numerous prior convictions, including in June 2000 for assault by kicking, but had not served a gaol sentence. A report by a distinguished psychiatrist, Dr Lester A. Walton, stated that he had examined the respondent once, on 11 June 2002, and had had reference to a psychological report and to pre sentence reports. Dr Walton stated in his report that the respondent was of normal intelligence. He had a lengthy history of substance abuse (mainly amphetamines and ecstasy). Dr Walton stated that "it would seem highly likely" that the respondent "was psychotic on each occasion that he has offended recently" but did not have a defence of mental impairment. The utility of Dr Walton's opinion was limited by the factual substratum it rested upon. On the day of the offence constituting count 2 the respondent had not ingested any illicit drugs. He did not suggest to investigating police that he had had any hallucinatory experience. He had a clear and detailed recollection of the events, although as I have said his later recounting of them was in certain respects false. The respondent told Dr Walton that he was "very drunk", yet his breathalyser reading at about 10.30 pm was 0.033%. Dr Walton concluded that at the time of consultation the respondent was not psychotic, but suffering a reactive depressive disorder. Dr Walton considered that the respondent was not suicidal and experienced appropriate remorse. He had undertaken drug rehabilitation.
The Director, Mr Coghlan Q.C., who appeared with Mr Kayser, submitted that the sentences imposed were manifestly inadequate. He acknowledged the relevance on sentencing of the respondent's youth. He submitted that the intentional actions of the respondent in count 2 were such as likely to cause very serious injury indeed. He submitted, correctly, that the provisional psychiatric diagnosis of psychosis was in the circumstances of this case of little utility in sentencing as it was drug induced and in any event the respondent had not consumed illicit drugs on the day in question. Mr P. Tehan Q.C., who appeared with Mr C. Boyce for the respondent, emphasised the respondent's youth and submitted that it was open for the sentencing judge to find that the respondent had not intended to cause injuries of the character or magnitude sustained in count 2, that the respondent had not previously served a term of imprisonment, and that the sentences imposed were not manifestly inadequate. Mr Tehan comprehensively reviewed relevant authority. However, those of intentionally causing serious injury – R v Misokka[1], R v Thompson[2], R v Wright[3], R v Stevenson[4], R v Teichelman[5] and D.P.P. v Waack[6] - fall far short of the present case. The sentence in Mallinder[7] is primarily explicable by the circumstance that the jury's verdicts necessarily involved, as Vincent J. observed at 186, that that offender did not intentionally fire the shotgun into the face of the most unfortunate victim.
[1]Court of Appeal, unreported, 9 November 1995.
[2]Court of Appeal, unreported, 21 April 1998.
[3][1998] VSCA 84.
[4][2000] VSCA 161
[5][2000] VSCA 224.
[6](2001) 3 VR 194.
[7](1986) 23 A.Crim R.179
The learned sentencing judge, in imposing sentence, save for one matter correctly reviewed the factual material and sentencing considerations. On the one hand, he stated on count 2 that "(t)here is no doubt … that the offending was indeed grave, and the consequences tragic." On the other hand, he took account of the youth of the respondent, his plea of guilty and other relevant mitigatory factors.
The matter exceptional from the correctness of His Honour's review was His Honour's finding that "objective seriousness of the offence, although undoubtedly grave, is not as grave as it would have been if … you had intended to cause these very injuries, or injuries of the magnitude of these injuries …" and reliance upon that finding as a mitigatory factor.
His Honour proceeded to balance that finding with the correct observation that the character, magnitude and permanence of the injuries are "very important sentencing factors." He referred to s 5(2)(db) Sentencing Act 1991 and to Economedes[8] in that regard. Economedes demonstrates the seriousness not only of the consequences of the respondent's conduct (demonstration which was sadly superfluous) but also the seriousness of this respondent's intention and conduct. For in Economedes the serious injuries were unintended. It was a case of recklessly causing serious injury, not of intentionally causing serious injury; and in that case, as Crockett J (in whose judgment Murphy J and I agreed) observed[9], the attack
"was short-lived and had produced no observable injury on the victim as he left the premises apparently unhurt and displaying no objective or external signs of the attack which had been made upon him."
It is difficult to imagine an objective scene more remote from that described by Crockett J than the condition of Ms Barker when the respondent left her battered body. The only connection of Economedes with the present appeal is that in each instance the consequences for the afflicted victim were indeed catastrophic.
[8](1990) 58 A.Crim.R 466.
[9]At 469.
In my view the learned sentencing judge fell into error in treating as a mitigatory factor that the respondent had not intended to cause injuries of the actual character or magnitude of those sustained by the victim. The respondent, a strong young man, viciously attacked a 16 year old girl by punching, squeezing, banging her head against a metal seat, kicking her in the head and stomping on her face. He knew what he was doing. It was obvious his actions were likely to cause her very serious injury indeed. He told investigating police he intended to hurt her. His plea admitted that he intentionally caused her serious injury. In the circumstances it does not avail the respondent that he lacked the specificity of medically qualified prescience. He stood for sentence for intentionally causing serious injury, into which offence these circumstances fell. The maximum penalty of 20 years' imprisonment reflects the potentiality of the offence.
In any event, it is plain that the sentences imposed upon each count were manifestly inadequate. They were so, applying the prudential principles applicable to Director's appeals which have been stated by Charles J.A. (with whom Winneke P and Hayne J.A. agreed) in R. v. Clarke[10] and which I need not here rehearse. They were so, also allowing for the proper effect of the principle of double jeopardy. As to that, I respectfully agree with Callaway J.A. who in D.P.P. v. B.A.B.[11] stated as to Director's appeals:
[10](1996) 2 VR 520 at 522.
[11](2002) VSCA 93 at paragraph 3.
" … the concept of double jeopardy, which is reflected in the overall total effective sentence, does not require us to impose a sentence at or near the bottom of the range. All that it requires us to do is to give the respondent an adequate discount for having to stand for sentence twice at the instance of the Crown."
Wood C.J. at C.L. in Loh[12] (and in whose judgment Sully and Dowd JJ. agreed) said[13] as to Director's appeals
" … if the Court elects to resentence, then the sentence imposed should normally be one towards the lower end of the range of sentences which could properly be passed at first instance."
His Honour referred to Dinsdale v The Queen[14]. However as Callaway J.A. noted in D.P.P. v. B.A.B.[15] there are a number of authorities (there cited) supporting His Honour's statement of principle. On a Director's appeal there is good reason, as a matter of fairness, principle and policy, for adequate discount to be given for double jeopardy. The basal considerations to that end are stated in Barwick C.J. in Peel v. R.[16] and in Griffiths v. R.[17] On a Director's appeal there is no reason, as a matter of fairness, principle or policy, to gravitate, on account of double jeopardy, towards "the lower end of the range."
[12](2002) 127 A. Crim. R. 577.
[13]At 584.
[14](2000) 202 CLR 321 per Kirby J at 341.
[15]In footnote 3.
[16](1971) 125 CLR 447 at 452.
[17](1977) 137 CLR 293 at 310.
Given the serious circumstances of the reckless infliction of serious injury on count 1, and the egregious circumstances of the intentional infliction of serious injury on count 2, I consider the sentences in each instance were manifestly inadequate and the total effective sentence was manifestly inadequate. I would allow the appeal. Applying the prudential principles relevant to Director's appeals, I consider the proper sentences to be as follows:
Count 1:
Two years' imprisonment;
Count 2:
ten years' imprisonment;
Cumulation:
six months of the sentence upon count 1 to be served cumulatively upon the sentence imposed upon count 2;
Total effective sentence:
10½ years' imprisonment.
Minimum term before eligibility for parole:
7½ years' imprisonment.
Presentence detention: an order that the days in custody to the date of this sentence be declared pursuant to s 18(4) Sentencing Act 1991 as already served under the sentence.
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