"J" (A Child) v The Queen
[2001] WASCA 107
•2 APRIL 2001
"J" (A CHILD) -v- THE QUEEN [2001] WASCA 107
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 107 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:226/2000 | 16 FEBRUARY 2001 | |
| Coram: | MALCOLM CJ STEYTLER J STEIN AJ | 2/04/01 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| PDF Version |
| Parties: | "J" (A CHILD) THE QUEEN |
Catchwords: | Criminal law Judgment and punishment Juvenile offender Sentence of detention for 12 months for attempted armed robbery in company and unlawful wounding Sentence of detention for 6 months concurrent for two offences of attempted armed robbery in company and one offence of armed robbery in company Sentence of 12 months' detention not manifestly excessive |
Legislation: | Young Offenders Act 1994 s 7(d) and (h), s 46 and s 121(1) |
Case References: | Nil Lowe v The Queen (1984) 154 CLR 606 Penny v The Queen, unreported; CCA SCt of WA: Library No 990189; 16 April 1999 R v "C" (A Child) (1995) 83 A Crim R 561 R v MacKenzie (1984) 13 A Crim R 330 Thomson & Owen v The Queen, unreported; CCA SCt of WA; Library No 980482; 3 August 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : "J" (A CHILD) -v- THE QUEEN [2001] WASCA 107 CORAM : MALCOLM CJ
- STEYTLER J
STEIN AJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Judgment and punishment - Juvenile offender - Sentence of detention for 12 months for attempted armed robbery in company and unlawful wounding - Sentence of detention for 6 months concurrent for two offences of attempted armed robbery in company and one offence of armed robbery in company - Sentence of 12 months' detention not manifestly excessive
Legislation:
Young Offenders Act 1994 s 7(d) and (h), s 46 and s 121(1)
(Page 2)
Result:
Leave to appeal granted
Appeal dismissed
Representation:
Counsel:
Applicant : Mr M J Aulfrey
Respondent : Mr K P Bates
Solicitors:
Applicant : Ian Hope
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Lowe v The Queen (1984) 154 CLR 606
Penny v The Queen, unreported; CCA SCt of WA: Library No 990189; 16 April 1999
R v "C" (A Child) (1995) 83 A Crim R 561
R v MacKenzie (1984) 13 A Crim R 330
Thomson & Owen v The Queen, unreported; CCA SCt of WA; Library No 980482; 3 August 1998
(Page 3)
1 MALCOLM CJ: This is an application for leave to appeal against sentence. On 13 September 2000 the applicant pleaded guilty to two offences of attempted armed robbery in company, one offence of attempted armed robbery in company and unlawful wounding and one offence of armed robbery in company. The offences were each contrary to s 391 and s 393 of the Criminal Code and aggravated by the circumstances mentioned.
2 The applicant was sentenced on 22 September 2000 to detention for 12 months in respect of the attempted robbery while armed and in company and unlawful wounding. In relation to the three other offences, a sentence of detention for six months was imposed for each offence to be served concurrently with each other and with the sentence of 12 months. The sentences were backdated to 14 September 2000.
3 The applicant sought leave to appeal against the sentences imposed on the following grounds, as amended by leave granted at the hearing of the application:
"The learned sentencing Judge erred in law in that she:
1. Imposed a sentence that was manifestly excessive in all the circumstances, taking into account of the age of the Applicant, lack of prior record, employment, and all other antecedents personal to the Applicant.
2. Imposed a sentence that failed to take into account the concurrence of community interests and rehabilitation of the offender in a non-custodial sentence.
3. Imposed a sentence that failed to take into account the sentencing of the Applicant's co-offenders, in that parity of sentencing in this instance dictated a non-custodial disposition be imposed.
4. Imposed a term of detention despite releasing the Applicant to bail pending sentence and therefore requiring a powerful reason not to impose a non-custodial disposition.
5. Imposed a term of detention without considering whether other, non-custodial dispositions were appropriate for the Applicant, particularly given the Applicant's antecedents
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- and that non-custodials dispositions were imposed upon the Applicant's co-offenders."
4 Following the pleas of guilty to each of the offences on 13 September 2000, the relevant facts were stated to the learned Judge by counsel for the Crown. On 15 March 2000 the applicant and four others met at a house in Mirrabooka. There was discussion about an attempted armed robbery some of them, not including the applicant, had been involved in on the previous day. It was then agreed between them that they would together do some robberies that day. The five young men were the applicant, who was 14; J, who was 15; T, who was also a juvenile, but whose age was not disclosed by the materials; Kim Windus, who was aged 20; and his brother, Michael Windus, who was aged 18.
5 At the time the applicant pleaded guilty, all of the other offenders had been dealt with. The facts as recounted by the learned Judge by counsel for the Crown were that all five got into a Holden Commodore motor vehicle driven by Kim Windus. They drove around looking for places where they could attempt to commit robberies. The applicant took a "T" shirt to use as a disguise by placing it over his head. One of the others also took a "T" shirt for the same purpose. Another took a balaclava. A number of "poles", being wooden sticks or metal bars were taken to be used as weapons. One of them was a metal bar which weighed approximately 2 kg. There was also a machete.
6 The group drove to Waldeck's Nursery in Karrinyup Road on the corner of Hamilton Street. The intention was to go into Waldeck's and commit a robbery. The occupants of the car had agreed that if anybody tried to stop them, they were prepared to use the weapons they had taken. Three of them, including the applicant, walked into the premises with the intention of committing a robbery. The applicant was armed with a solid metal bar. Michael Windus was armed with a machete and J was armed with a hollow metal bar. The car was parked around the corner. The three of them hid in some bushes to put on their disguises. They went inside Waldeck's, into the public area. Seeing no-one about, they attempted to open the cash registers which were computerised. They could not open them. One of them smashed a computer screen with one of the poles. This attracted the attention of an 18 year old female shop assistant who came out. When she saw them she retreated into a back room and called for help. At this stage the three offenders abandoned the attempted robbery, ran out of the premises and returned to the car.
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7 The five of them then drove around looking for another place to rob. They came across the Chicken Inn Deli in Greenwood near a BP service station. The same three put on disguises, waited for cars to leave and then went into the deli. The applicant was armed with the metal bar. The others also had poles. When they went into the Chicken Inn Deli there were three or four customers in the store. One of the co-offenders, (not the applicant) then called out to everybody, "Get the fuck on the floor and hand over your wallets".
8 One of the customers dropped to the floor and threw his wallet at the co-offender who had called out. The staff behind the counter, that is, the owner of the store and some of his staff, then started throwing things at the offenders. They threw a knife which actually struck and injured one of the co-offenders on the elbow. He received a small cut. They also threw other things such as pizza trays and bowls. As a result of this counter-attack, the three offenders retreated outside leaving the wallet behind and ran off back to the car. They got into the car and drove away.
9 They continued looking for premises from which they could steal. They went to a park in Hamilton Street, Balcatta, near Main Street. At the park there were some shops, including a deli, adjacent to a toilet block. In relation to the offence involving Mr Miskelly, the applicant and Michael Windus, together with the others, except Kim Windus, who was in the car, went into the toilet block in order to prepare for a robbery to be carried out in the deli, taking with them their various weapons and disguises. The applicant was again armed with the metal bar. In the meantime Mr Miskelly was driving home from work. He pulled up at the shop adjacent to the park, purchased some soft drink and cigarettes and went to use the toilet. The applicant and three others were in the toilets. All four of them walked out. The applicant and Michael Windus (the 18 year old) then went back into the toilet with the intention of robbing Mr Miskelly. Michael Windus asked Mr Miskelly for a cigarette. Mr Miskelly said he did not have any. Michael Windus and the applicant both demanded that Mr Miskelly hand over his wallet. Michael Windus pointed the machete at him. Mr Miskelly attempted to get past the applicant and Michael Windus and pushed the latter. The applicant then struck Mr Miskelly on his forehead with his solid metal bar, injuring him and causing him to fall to the ground. Without obtaining any cash all of those who were at the toilet block ran from the scene to the car which was waiting nearby.
10 Medical evidence was led from a Dr Gurgo which indicated that Mr Miskelly had been admitted to the Casualty Department of Sir Charles Gairdner Hospital on 15 March 2000. On initial examination he was
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- found to have suffered a left forehead laceration and a headache, but no loss of consciousness. He had a blood clot under the skin in the region of the left upper eyelid and blood on his nose. He had a left upper forehead laceration with minimal oedema. A CT scan showed a left frontal extra-dural haematoma about 2.5 cm thick. This was a blood clot between the dura which is the covering of the brain and the skull, which was about an inch thick. His skull was fractured. The fracture did not impinge into the brain, it was a linear fracture without depression into brain tissue. Repeat CT scans of his head showed resolution of the haematoma which resolved over time. His headache gradually settled and he was discharged on 18 March 2000. Dr Gurgo reported on the outcome, as follows:
"In my opinion the injuries it seemed were consistent with the mechanism described of the alleged assault. These injuries were potentially life threatening, however, no operative intervention on this occasion was required. These patients often have problems with impaired memory and concentration for several months after this type of injury, however, one would expect no long term sequellae beyond about six months or so."
12 The final offence in which the applicant was involved was a completed armed robbery in company. After the offence involving Mr Miskelly the offenders drove off in the car. They were in the vicinity of Mirrabooka where they observed a 15 year old boy riding his bicycle along the road. Michael Windus and the applicant got out of the car with the intention of stealing the bicycle. They ran towards the complainant. At the time, Michael Windus was armed with a knife and the applicant was armed again with the steel bar. They threatened the complainant with it. He was obviously very frightened and dropped the bicycle. The applicant picked it up and rode from the scene.
13 As it happened, the applicant was the last of the offenders to be sentenced. J, who was aged 15, who remained in the car while each of the offences was committed, who pleaded guilty to two relevant offences and was involved in the attempted armed robbery the previous day, as well as some unrelated cannabis offences and assaulting a public officer, was sentenced to an Intensive Supervision Order ("ISO") for six months. At the time, J was staying with the Windus family. He had not previously offended. He had been using cannabis since he was 11 or 12 as well as consuming alcohol. The learned President of the Children's Court
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- sentenced him to a youth Intensive Supervision Order for a period of six months, taking into account that J had made substantial efforts at rehabilitation and, although he was one of the group who committed the attempted robberies, he did not go into any of the premises himself. Her Honour took the view that, as J was in employment and had already completed a drug rehabilitation programme at Holyoak a non-custodial disposition was appropriate.
14 T, who was also a juvenile, who was aged 15, and who was a member of the group who went into Waldeck's Nursery, the Chicken Inn Deli, was present in the toilet at the time of the assault on Mr Miskelly and involved in the attempted armed robbery and conspiracy to commit armed robbery was sentenced to an ISO for 12 months. Kim Windus, who was aged 20, whose role was restricted to driving the motor car, was sentenced in the District Court by the Chief Judge to imprisonment for 3 years which was suspended for a period of 2 years. Although he was the eldest of the offenders he was somewhat retarded and had a significantly lower mental age. He pleaded guilty to the offences at Waldeck's Nursery and the Chicken Inn Deli, in respect of which his role was as the driver of the motor vehicle. He was in the same position in relation to the intended robbery of the Harrison Street Deli in Balcatta, which was not carried out as a result of the incident in the toilet. After that incident, the offenders ran back to the car where Kim Windus was waiting in the vehicle. He admitted his involvement in the three offences and pleaded guilty on the fast-track system. He had readily admitted his involvement in the three offences in a record of interview. However, while he willingly drove the other persons to Waldeck's Nursery, he then decided he did not want to be involved and communicated that to the others when they returned to the car. He maintained that he felt threatened by the others and for that reason he continued to drive them around to commit the other offences. There were opportunities for him to drive away but he did not do so. However, he was very co-operative with police officers, who only became aware of the offenders' involvement at the Chicken Inn Deli as a result of what they were told by him. They were not aware of the identity of the others prior to interviewing him. Taking the various mitigating factors into account, the learned Chief Judge sentencing Kim Windus to imprisonment for three years in respect of each of the offences with which he was involved to be suspended for a period of two years from 9 June 2000. In taking that step the learned Chief Judge said:
"The events of 15 March I will treat as a one-off and I will treat your involvement as being considerably less than that of the other persons who entered the building."
(Page 8)
15 Michael Windus, who was aged 18, and who was clearly the ring leader, but who had no previous record, was dealt with in the Supreme Court and pleaded guilty to an indictment which alleged four counts of attempted armed robbery, including the attempt on the previous day, and one completed armed robbery in company. Because of various factors in his favour including his prospects of rehabilitation he was sentenced to an ISO for 2 years with a six months curfew and a requirement that he perform 120 hours of community service work. As has been seen his role most closely mirrored that of the applicant, although he did not strike the blow that injured Mr Miskelly, and he had been involved in the attempted armed robbery the day before while the applicant had not. Michael Windus, however, played the leading role in the last of the offences involving the armed robbery of the bicycle. The personal circumstances and prospects for rehabilitation of Michael Windus clearly had a substantial influence on his sentence. In sentencing Michael Windus on 31 August 2000, the Hon Justice Wheeler commented that:
"Although questions of parity do not strictly arise in relation to juveniles and although questions of parity do not strictly arise where, as here, the offences charged are different in each case, it is nevertheless noteworthy that none of the others with whom you were involved in these offences has received a sentence of imprisonment. It is also, of course, to be noted that the role you played in each offence was significant in the sense that you were apparently on each occasion one of the two or one of the ones who was armed and disguised and was prepared actually to go into the premises to commit the offences. In that sense you had the largest role.
However, I do note that the report of Mr Watts, the clinical and forensic psychologist, very much doubts whether you were really the ringleader in the sense of dominating the group. I have to say, having viewed your videotaped record of interview, it does appear to me unlikely that that was the case. You had committed no previous offences of any kind prior to this spree."
16 Wheeler J subsequently commented with reference to Michael Windus that:
"Your level of academic or general ability and your IQ are the subject of the psychological report. I don't propose to go into that in detail but it does appear to me that the findings made there, together with the fact that you were but a teen at the time
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- of the offences, do tend to justify treating you as having a degree of parity with your juvenile co-offenders which would not normally be the case where a person who was an adult had committed offences with juveniles.
As I said, my viewing of the video is to the same effect. There is in your demeanour a mixture of sullenness and bravado which reminded me very strongly of 12-year-old boys with whom I have been in contact. There was displayed in that video, it seems to me, a total lack of maturity and a lack of appreciation of the seriousness or consequences of your offences, which stems, I think, not from a particularly criminal disposition but, as I say, simply from a lack of maturity."
17 There was a psychological report in respect of Michael Windus that there was a real risk, if he was to be imprisoned, that he would be very prone to developing negative peer associations and, in effect, end up being rather more successful at offending when he came out of gaol than he was at the time of these attempts. The learned Judge came to the conclusion that an Intensive Supervision Order would be best calculated to protect the community in the long run and placed him on an Intensive Supervision Order for two years, including a programme requirement, 120 hours of community service and a curfew requirement for six months.
18 There can be no doubt that this applicant was the person who committed the act of aggravation of the attempted robbery of Mr Miskelly by hitting him in the head with a metal bar and fracturing his skull. While there were other persons involved in the various offences, including the offence involving Mr Miskelly, the violence used on the latter by the applicant was the most serious criminal act of all of those which were perpetrated by members of the group on 15 March 2000. The learned President of the Children's Court, having described the failure of the attempted robberies at Waldeck's Nursery and the Chicken Inn Deli, described the incident in the public toilets at Balcatta as follows:
"It would seem that, as a result of these two foiled, or failed, attempts at a robbery, the offenders sort of regrouped themselves near a public toilet to decide what they were going to do, and it would seem that at least two of the offenders decided they didn't want to continue with this. This offender [the applicant] and Michael Windus then decided to rob a man who had gone in to use the public toilets. This was a reasonably spur of the moment decision, as I think they had gone into the
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- public toilets in order either to take off the disguises or put them back on. I think they were at that stage contemplating a robbery or some of them were contemplating attempting another robbery on another deli.
Then they saw a man walk in to use the public toilets, and this was the complainant, Ernest Miskelly, who had simply gone, I think, to a nearby petrol station and walked into the public toilets. He was approached by this offender and Michael Windus, who first asked him for a cigarette. His wallet was then demanded from him and the machete was pointed towards him or directed towards him by the offender, Michael Windus. The complainant attempted to push Michael Windus away, and when he did this he was struck across the head by this offender with the metal bar, and as a result he has been convicted of the offence of attempting to steal from Mr Miskelly in the company of Michael Windus while armed and at the time unlawfully wounding the complainant, Ernest Miskelly.
Shortly after that I think the offenders all but abandoned their plans, and I think at this stage they hadn't obtained any money whatsoever. I don't think they got Mr Miskelly's wallet. They ran off when he fell to the floor after being hit with the metal bar."
19 Her Honour went on to describe the circumstances under which the bicycle was stolen.
20 The learned Judge noted the submission that had been made to her that, despite the seriousness of the offences, there were alternative appropriate dispositions which could be imposed as an alternative to detention. The learned Judge had obtained a pre-sentence report which confirmed that, at the time the relevant offences were committed, the applicant was under the influence of cannabis and in company with the others, but was remorseful.
21 Her Honour then recounted the applicant's family background which showed that he had little contact with his biological father and that his mother had entered into a relationship with another partner which was characterised by severe domestic violence which had impacted significantly on the applicant. He had moved out of the family home a short time ago and was living with his girlfriend and her family. Her Honour found that this had been a very positive influence on him. He had
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- worked in a number of temporary jobs and was employed at the time he came before her Honour for sentencing.
22 Although he had used cannabis since the age of 13, this had ceased since he moved in with his girlfriend and her family. He had attended psychological counselling while he was on bail in respect of the current offences, which had focused on anger management issues and issues surrounding the domestic violence problems when he had been living with his mother and her partner.
23 The pre-sentence report indicated that the absence of a positive male role model in his life was the basis of some of his problems. It was considered that he would benefit from continued psychological counselling. It was not considered that substance abuse would be a significant continuing problem, since he had ceased the use of illicit substances since he had lived with his girlfriend's family and started working. The learned Judge noted that the applicant had no previous convictions and that it had been submitted to her that she should take into account that none of the co-offenders received terms of detention or imprisonment. Her Honour said, however:
"I accept although what has occurred with fragmentation of sentencing that there has been perhaps the not uncommon practice of attributing blame to other offenders, and I accept that this has not occurred in this case - but certainly in relation to his co-offenders - but this is where the parity issue is significant - it was submitted to me that they were led by the older and more sinister adult, Michael Windus. There is some doubt on that now as a result of the matters that were put before Wheeler J in the Supreme Court, but to some extent that explains the sentences that were imposed upon them.
It is also, however, significant that in relation to each of the juvenile offenders that I dealt with that they did not play the same role that this offender did in the commission of the offences. Whilst one of them did certainly go into the premises and was also at one stage armed with a weapon, they did not play the same consistent role that this offender did in relation to practically all of the format as I have before me.
But of greater significance - and I think the crucial point in this case - is that the co-offenders, apart from Michael Windus, were not involved in the most serious offence in this case, which is
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- the offence of attempting to steal from the complainant, Ernest Miskelly, with actual violence and at that time unlawfully wounding Ernest Miskelly."
24 In this respect, I am of opinion that the learned Judge was entirely correct. As her Honour went on to point out, there was a significant distinction between the roles played by the other juvenile and the adult offenders in relation to the various offences which were committed in that it was the applicant and the applicant alone who committed the act of actual violence on the complainant Ernest Miskelly.
25 Her Honour also said:
"I accept that even in circumstances where the court is dealing with very serious offences of armed robbery, when the offender is a young juvenile - at this stage the offender is only 15 and was under the age of 15 at the time of the commission of this offence - and when he has no previous convictions, even with serious offences of armed robbery there is an alternative open to the court, and that is a community based option, because of the principles of juvenile justice which I will refer to briefly."
26 Her Honour then referred to the relevant provisions in s 46 of the Young Offenders Act 1994 which sets out the principles and considerations to be applied when sentencing young offenders. Specifically, her Honour noted that under the Act, the court had to take into account the general principles of juvenile justice set out in s 7 of the Act, including the provision in s 7(h) that detention in custody should only be used as a last resort and, if required, was only to be for a short a time as necessary. Rehabilitation and reformation of young offenders is a primary consideration and focus of the Children's Court. Her Honour also noted that at the same time the court also had to observe the general principle under s 7(d) that the community must be protected from illegal behaviour. Her Honour then said:
"This Court and the Court of Criminal Appeal has recognised on many occasions that there are cases where considerations general deterrence and the protection of the community demand a custodial sentence, notwithstanding youth and good antecedents. I consider that in this case there is a significant - as I said a significant distinction - in the overall criminality of this offender with that of his juvenile co-offenders. The fact that he in fact struck what has to be a reasonably heavy blow to
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- the head of Mr Miskelly is a significant factor and one that I consider indicates to me that the only appropriate disposition that can be imposed in relation to that offence is a term of detention.
I have had the benefit of hearing evidence from the medical witness in relation to the injuries sustained by Mr Miskelly and they were indeed serious. He suffered a blow to the head that produced a haematoma and what was referred to by the doctor as an undisplaced fracture. He describes that as meaning a linear fracture, or just a line type fracture without depression into the brain tissue. The extra-dural haematoma was described as a blood clot between the dura, which is the covering of the brain and the skull, and although it resolved in terms of the immediate urgency and he was discharged from hospital three days later, it is quite clear from the victim impact statement that the consequences on Mr Miskelly were significant."
27 Her Honour properly recognised that the co-offender, Michael Windus, had the same legal responsibility, because of the provisions of s 7 and s 8 of the Criminal Code, but said that, "… nonetheless it cannot be ignored that it was this offender who actually struck the blow, and therefore caused the injury to Mr Miskelly".
28 Her Honour went on to say:
"The fact of the matter is, to strike a man over the head with a heavy metal bar is indeed a very dangerous thing to do, which is quite clear from the injuries that he sustained. It is fortunate that he made a recovery and there have been no, as far as I can see, serious ongoing sequelae."
29 Given the nature of the assault and the weapon involved, it may well have been a matter of good fortune that Mr Miskelly did not suffer a significantly more serious injury or even death. As her Honour put it:
"Fortunately [the assault] did not have … any serious long term permanent consequences, but that is probably more by good luck rather than anything else. This is a significant factor."
30 It was for these reasons that the learned Judge went on to say:
"I consider that despite this offender's age and his previous good behaviour and his plea of guilty, and the fact that co-offenders
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- who are not involved in this most serious aspect of the offences, despite the fact that they have been given non-custodial dispositions, the importance of the principle of general deterrence indicates to me that the only appropriate disposition is a term of detention. The community are entitled to be protected from the dangers inherent in the kind of behaviour that took place on the afternoon of the 15th of March this year.
I will however reduce the term of detention considerably because of all the personal factors of [the applicant]. If it were not for his very young age and good antecedents he would receive a term of detention significantly higher than will be imposed in relation to this offence. I will also stress that if it was not for this particular matter, namely the offence of unlawful wounding in the course of the attempted robbery on Mr Miskelly, I would be disposed to consider a non-custodial term, as has been employed with his co-offenders.
He will be sentenced to a term of 12 months' detention in relation to the attempted robbery and unlawful wounding offence on Mr Miskelly. In relation to the other three matters, there will be terms of six months of detention which will be concurrent with each and concurrent with that term. Whilst otherwise non-custodial terms would have been imposed, obviously with a term of detention for the offence on Mr Miskelly there is no other alternative but to impose terms of detention.
He will of course be eligible for release at an earlier date, following consideration of his Case by the Supervised Release Board. He has, as I understand I, some eight days in custody to be taken into account, so his sentence will be backdated to the 15th of September this year."
31 In my opinion, having regard to the seriousness of the offence and the substantial distinction between the conduct of the other various offenders who were dealt with by the various Judges in this case, no basis has been demonstrated which would justify this Court in interfering with the sentencing discretion as it was exercised by her Honour. In my opinion, the sentence which was imposed was entirely justified. It is to be noted that, by virtue of s 121(1) of the Young Offenders Act, it is provided that:
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- "If a court sentences a young person to detention for 12 months or less, the offender is to remain in custody for 50% of the term to which the offender was sentenced before the offender can be released under a supervised release order."
32 It follows that, as at the date of the hearing of this application for leave to appeal, the applicant was eligible to be released under a supervised release order as from 14 March 2001.
33 For the reasons I have indicated, I do not consider that it has been demonstrated that there was any error in the exercise of the sentencing discretion in this case. On the contrary, I consider that the sentence imposed was one which was entirely appropriate. For these reasons while I would grant the applicant leave to appeal I would dismiss the appeal.
34 STEYTLER J: I have had the advantage of reading the reasons for decision of Malcolm CJ. I agree with them and with his Honour's conclusion. I have nothing to add.
35 STEIN AJ: I have had the benefit of reading the draft judgment of Malcolm CJ. I agree with his Honour's reasons and with the orders proposed.
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