Little v Police - [2006] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LITTLE v POLICE
Judgment of The Honourable Justice White
12 April 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
Appeal against conviction and sentence - accused pleaded guilty to theft and found guilty of one count of assault occasioning actual bodily harm and two counts of assault with intent to resist or prevent lawful apprehension: s 43(c) of the Criminal Law Consolidation Act - whether Magistrates Court record of outcome accurately reflects orders made by magistrate - whether there was sufficient evidence on which to find accused guilty of offences against s 43(c) - consideration of elements of offence against s 43(c) - prosecution not required to prove existence of arrest or attempted arrest at time of assault - sufficient evidence on which to find charges proved - whether sentence manifestly excessive in all the circumstances - whether sentence ought to have been suspended - appeal against convictions allowed for purpose of correcting Magistrates Court record of outcome - appeal against sentence dismissed.
Criminal Law Consolidation Act 1935 s 40, s 43, s 134, s 271; Criminal Law (Sentencing) Act 1988 s 18A; Summary Offences Act 1953 s 76; Correctional Services Act 1982 s 74A; Crimes Act 1958 (Vic), s 31; Offences Against the Person Act 1861 (UK) s 38, referred to.
R v McCabe (1904) SALR 115, not followed.
R v Self [1992] 3 All ER 476; R v Heavey (1965) 84 WN (Pt 1) NSW 248, discussed.
R v Lee [2001] 1 Cr App R 19; R v Reynhoudt (1962) 107 CLR 381; R v Galvin (No 2) (1961) VR 740; State of Tasmania v Lee [2005] TASSC 117, considered.

LITTLE v POLICE
[2006] SASC 101
Magistrates Appeal

WHITE J: This is an appeal against both conviction and sentence.
The appellant pleaded guilty to a charge of theft, contrary to s 134 of the Criminal Law Consolidation Act 1935 (“CLCA”) and after a trial, was found guilty of an offence of assault occasioning actual bodily harm (Count 2) contrary to s 40 of the CLCA, and of two offences of assault with intent to resist or prevent his lawful apprehension for an offence (Counts 3 and 4), contrary to s 43(c) of the CLCA.
Circumstances of the Offences
Each of the offences was committed on 23 October 2003. On that day, the appellant was at a shop at the Munno Para Shopping Centre with a friend, Ms Curtis, and his 12 year old son. Ms Curtis selected a CD rack from a display. At about the same time, the appellant was observed to place some CDs down the front of his jeans. At the check-out, Ms Curtis paid for the CD rack but the appellant did not pay for the CDs. The appellant was accosted by two representatives of the store a short distance after leaving it and whilst still in the shopping centre and while still accompanied by his son and Ms Curtis. The appellant was told by one of the store representatives, Ms Cotton, that she was a store representative, that she had seen him put the CDs down his pants, and that she wanted them back. Initially, the appellant denied having any CDs and attempted to walk away. The two store representatives were insistent, and Ms Cotton positioned herself in front of the appellant to impede his progress. After being invited to do so, the other representative, Ms Wilding, patted down the appellant’s pockets. On doing so, she pointed to the presence of the CDs whereupon the appellant produced them. He then struck both Ms Cotton and Ms Wilding with Ms Curtis’ CD rack. A statement of Ms Curtis was tendered at the trial. Ms Curtis described the appellant saying “Run” before either of the two store representatives was struck. Neither Ms Cotton nor Ms Wilding mentioned in their evidence the appellant exclaiming “Run” at or about the time at which they were struck. In any event, after Ms Cotton and Ms Wilding had been struck, each of the appellant, his son and Ms Curtis did run away. The appellant was unable to be stopped.
The appellant was charged with four offences. The first was the offence of theft of the CDs (valued at $12.95) contrary to s 134(1) of the CLCA. As already noted, the appellant pleaded guilty to this offence. As I understand it, this plea was entered at an early stage.
The appellant was charged with three offences of assault. The first (Count 2) was a charge of assaulting Ms Cotton and causing her actual bodily harm, contrary to s 40 of the CLCA. Ms Cotton was struck to her head and suffered significant bruising in and about her left eye as well as lacerations to her scalp. Counts 3 and 4 alleged that the appellant had assaulted Ms Cotton and Ms Wilding respectively with the intent of resisting or preventing the lawful apprehension of himself for an offence, contrary to s 43(c) of the CLCA.
Magistrate’s Decision
At the trial each of Ms Cotton, Ms Wilding and the appellant gave evidence. The magistrate found each charge of assault proved. He accepted Ms Cotton and Ms Wilding as being generally reliable witnesses, and rejected the appellant’s account of events entirely.
The magistrate considered the assaults sufficiently violent to warrant the imposition of a sentence of imprisonment. He then said:
Clearly the assault occasioning actual bodily harm is the most serious charge. In relation to Counts 2 and 4, I consider a sentence of eight months imprisonment is the appropriate sentence. I will indicate that because of the sentence of imprisonment that I am imposing for those matters I don’t propose adding any additional sentence of imprisonment or further penalty for the offence of theft to which you have pleaded guilty.
The magistrate then considered a submission that any sentence of imprisonment should be suspended, and rejected it.
Although the Magistrates Court record shows that a single sentence of imprisonment for eight months was imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 in respect of Counts 2, 3 and 4, the magistrate’s remarks at the time of sentencing indicate that that sentence was imposed in respect of Counts 2 and 4 only. In respect of the offence of theft, the magistrate recorded a conviction but discharged the appellant without imposing any penalty.
Issues on Appeal
The disconformity between the magistrate’s sentencing remarks and the signed record of outcome resulted in some uncertainty at the hearing of the appeal. Following the hearing of the parties’ substantive submissions, I requested, pursuant to SCR 97.14, a report from the magistrate as to the basis of his sentence. The magistrate reported that he had not intended to record a conviction or to impose any penalty in respect of Count 3, as he had taken the view that the conduct comprising that offence was essentially the same as that comprising Count 2 which was the more serious offence. Insofar as the court file indicated that a conviction had been imposed on Count 3, and the s 18A sentence imposed in respect of that offence as well as Counts 2 and 4, it was in error.
On the initial hearing of the appeal (prior to receipt of the magistrate’s report), Ms David, who appeared for the appellant, confined the grounds of appeal to the following:
1.The conviction on Count 3 for the offence of assault with intent to resist or prevent lawful apprehension should be quashed as an abuse of process because the conviction on Count 2 for the offence of assault occasioning actual bodily harm comprised the same conduct on which the prosecution relied for Count 3.
2.Further, or in the alternative, each of the convictions on Counts 3 and 4 should be quashed because there was insufficient evidence on which those charges could be found proved.
3.The sentence of imprisonment for eight months was manifestly excessive.
4.Even if the sentence of eight months was not manifestly excessive, the magistrate had erred in declining to suspend that sentence.
Insofar as these complaints constituted a departure from the grounds of appeal contained in the Notice of Appeal, I was told that the latter were abandoned.
Following the receipt of the magistrate’s report, I gave leave to the appellant to amend his grounds of appeal to add a ground in the following terms:
The record of outcome initialled by the magistrate does not reflect the orders made in court by the magistrate insofar as it records that a conviction was entered on count 3.
It was common ground that it would be appropriate for the appeal to be allowed so that the Magistrates Court record could be amended in accordance with the magistrate’s report. It was also common ground that the correction of the Magistrates Court record in this way made further consideration of the appellant’s first ground of appeal unnecessary, and that ground 2 should be understood as a complaint with respect to the conviction on Count 4 only.
Extension of Time
The magistrate found the charges proved on 13 December 2005. He sentenced the appellant on 20 December 2005. The appeal to this Court was instituted on 18 January 2006. This was outside the 14 day period fixed by SCR 97.04. The failure to institute the appeal within time resulted from some delay over the Christmas holiday period in the appellant’s solicitor receiving the transcript of the magistrate’s ex tempore decision on the trial and of his sentencing remarks. None of the delay was attributable to the appellant personally. The respondent did not oppose the granting of an extension of time. I am satisfied that it is appropriate for an extension of time to be granted and extend to 18 January 2006 the time within which the appeal could be instituted.
The Sufficiency of the Evidence for Count 4
Section 43 of the CLCA provides:
Any person who—
(b) assaults, resists or wilfully obstructs any police officer in the due execution of his duty or any person acting in aid of such an officer;
(c) assaults any person with intent to resist or prevent the lawful apprehension or detention of himself, or of any other person, for any offence,
shall be guilty of an offence and liable to be imprisoned for a term not exceeding five years.
The appellant submits that an element of a contravention of s43(c) to be established by the prosecution is that a person was in fact effecting, or intending to effect, the lawful apprehension or detention of an accused for an offence. In addition, the prosecution must also establish, of course, that the accused assaulted a person with the intention of resisting or preventing such a lawful apprehension or detention.
Ms David, who appeared for the appellant, put her submissions on this aspect of the appeal in two ways. In the first place, it was submitted that the offence created by s 43(c) assumes a certain state of affairs and, if that state of affairs does not exist, the offence cannot be committed. That state of affairs is the actual or imminent lawful apprehension of a person for an offence. In the circumstances of the present case, it would require the actual or imminent apprehension of the respondent for the offence of theft. Were it otherwise it would, it was submitted, make a “nonsense” of s 43(c).
Related to that submission was another, namely that as a matter of law, unless it could be established that an apprehension was being attempted, or was imminent, it could not be established that the appellant had the state of mind required for the offence.
It was submitted then that the evidence indicated that neither Ms Cotton nor Ms Wilding was, at any time, attempting to effect, or even intending to effect, the lawful apprehension or detention of the accused. Hence, it was submitted that the magistrate should have found the evidence insufficient to make out Count 4.
I am satisfied that this submission is correct insofar as it relates to the actions and intentions of Ms Cotton and Ms Wilding. The effect of their evidence was that they were concerned to recover the stolen CDs. They hoped to be able to do that by confronting the appellant and demanding the return of the CDs. They did not intend to apprehend him or to detain him. If the appellant had not returned the CDs they would not, in accordance with their employer’s policy, have sought to prevent him leaving the shopping centre. Ms Cotton said of her intentions:
I wanted to get the CDs and go. That’s all … I was quite happy to let him walk away once I had received the CDs, quite happy to.
It is true that Ms Cotton had stepped across the path of the appellant so as to prevent him walking away whilst being spoken to. In a sense, that amounted to a detaining of the appellant, but in my opinion, the detention to which s 43(c) refers is a detention in some form of custody.
Hence, if proof that a lawful apprehension or detention was in fact being carried out (or was at least intended) is required, the appellant’s submission concerning an insufficiency of the evidence is well made.
The Elements of a s 43(c) Offence
Section 43(c) creates a form of aggravated assault. The circumstance of aggravation is the commission of an assault with a particular intent. That intent is defined by reference to an action which can be taken by a third party. The question is whether the requisite intent is to be determined by reference to an action which is being taken or about to be taken by the third party, or whether it extends to an action which might be undertaken by that third party.
The appellant was charged with the assault of Ms Cotton and Ms Wilding respectively with the intent “to resist or prevent” his lawful apprehension for the offence of theft. No point was taken at first instance, or in this Court that the charge in this form was duplicitous or uncertain. It is therefore not necessary to consider those questions. In my opinion, however, the words “resist” and “prevent” have a different meaning. They are not synonymous. It may be that resistance of lawful apprehension implies that such an apprehension is actually being attempted. One cannot resist that which is not being proposed. So, for example, in R v Galvin (No 2) in relation to the offence of resisting a police officer in the execution of his duty, it was said:
The word “resist” carries with it the idea of opposing by force some course of action which the person resisted is attempting to pursue.[1]
[1] (1961) VR 740 at 749 per O’Bryan, Dean and Hudson JJ.
In my opinion, the word “prevent” has a wider connotation than the word “resist”. In its ordinary meaning, it means “to keep from occurring”: Macquarie Dictionary. It is capable of including an anticipatory action as well as an action hindering or stopping something which has already commenced. When used in conjunction with, but as an alternative to, the word “resist”, it is natural to construe the word “prevent” as extending, at the least, to actions of an anticipatory kind. That, in my opinion, is an appropriate construction of the word “prevent” in s 43(c).
In the context of s 43(c) an offender could commit an assault in anticipation of his apprehension being attempted and for the purpose of keeping it from occurring. In my opinion, such an intention may be formed before such an apprehension has begun to be attempted, and even without the victim having an intention to effect such an apprehension. Proof that an accused did have such an intention in the absence of evidence of any overt act by a victim suggesting that apprehension is imminent may be more difficult than in cases where an apprehension is being attempted, but that does not mean that an attempt at apprehension, or an intention to effect an apprehension, is an element of the offence.
Section 43(c) is the South Australian counterpart of s 38 of the Offences Against the Person Act 1861 (UK). It has a number of counterparts in interstate legislation. Although a longstanding provision, it seems that it is rarely used. There is relatively little authority regarding its proper construction and the elements to be established. In R v Self[2] the Court of Appeal held that the offence could be committed only if the victim had a lawful power of arrest. In that case, an assault was committed by the accused while private citizens were in fact attempting to effect his arrest for shoplifting. It was held that the arrest was not authorised. That being so the conviction for an offence contrary to s 38 could not stand. Self is authority for the proposition that the apprehension which the assault is committed to prevent must be lawful, but it says nothing about the question in this case nor as to the state of the accused’s mind with respect to the lawfulness of the apprehension being attempted, or about to be attempted, at the time the assault was committed.
[2] [1992] 3 All ER 476.
In State of Tasmania v Lee[3] it was held in relation to the Tasmanian equivalent of s 43(c) that while the prosecution must establish that the apprehension was lawful, it does not have to establish any belief by the accused to that effect. A similar approach was taken by the Court of Appeal in R v Lee[4].
[3] [2005] TASSC 117.
[4] [2001] 1 Cr App R 19.
Relying on Self, Archbold suggests that what must be proved is that the person assaulted had the right to apprehend the defendant for an offence.[5] Heath’s “Indictable Offences in Victoria” 2^nd Ed does not include an actual attempt to effect an apprehension as an element of the Victorian counterpart of s 43(c) in s 31(1)(c) of the Crimes Act 1958 (Vic).
[5] Archbold JF, Criminal Pleading, Evidence & Practice, 2005 ed London, Sweet & Maxwell, 2005, Pp 1804-5.
In R v McCabe[6] it was held, in relation to an offence of shooting with intent to prevent a lawful apprehension, that it was necessary for the prosecution to prove that the accused knew that the constables were intending to apprehend him at the time he fired the shot. This would imply that there must also be evidence that the constables were in fact intending to effect an apprehension. However, in my opinion, there must be a real question as to whether McCabe would now be regarded as good law in view of the decision of the High Court in R v Reynhoudt[7] concerning the offence of resisting a police officer in the due execution of his duty.
[6] (1904) SALR 115.
[7] (1962) 107 CLR 381.
A case which is somewhat similar to the present is R v Heavey.[8] In that case the Court of Criminal Appeal in New South Wales considered a charge of maliciously wounding a police officer with the intention of preventing the lawful apprehension of the defendants in circumstances in which the police officer had not commenced to effect an apprehension. Each of Herron CJ and Walsh J held that it was necessary for the prosecution to establish that it was the intention of the accused to resist or prevent an arrest, and that the arrest would have been lawful.[9] Walsh J held in addition that it was not necessary for the prosecution to establish either an announcement by the police officer that he was about to effect an arrest, or an overt act to indicate that that was his intention.[10]
[8] (1965) 84 WN (Pt 1) NSW 248.
[9] Ibid at 249, 256.
[10] Ibid at 256.
In my opinion, s 43(c) does not require proof of any conduct by the victim to effect an apprehension, or proof of the victim’s intention with respect to an apprehension. In referring here to the victim, I am referring to a victim who is also the person who is effecting, or who could himself or herself effect, the apprehension. A victim may not always be such a person but circumstances of that kind can be put to one side for present purposes.

The focus of s 43(c) is on the state of mind of the accused, not that of the victim. What must be proved is the accused’s state of mind. It would be unusual if proof by the prosecution of the state of mind of the accused was intended to depend upon proof of an antecedent state of mind by the victim. Victims accosting an offender may or may not know of their powers of arrest arising under s 271 of the CLCA, s 76 of the Summary Offences Act 1953 (SA), or at common law. Even if aware of these powers, they may or may not intend to exercise them. Alternatively again, they may wish to exercise a power of apprehension but consider it prudent to defer any attempt to do so until appropriate precautions have been taken, or assistance or other backup has been obtained. Given that the state of mind of the victim may well be fluctuating, it seems unlikely that proof of the offence was intended to depend upon a particular state of mind of the victim at the time the assault occurs.
I agree with the submission of Mr Hinton that acceptance of the appellant’s submission would involve the reading of additional words into s 43(c) so that it should, for example, be understood as meaning “any person who assaults any person who is lawfully exercising a power to apprehend or detain himself or any other person for any offence with the intention of resisting or preventing that lawful apprehension shall be guilty of an offence”. This would be to impose an additional element which the present language of s 43(c) does not require.
As I have said, it may be easier for the prosecution to prove the existence of the relevant intention when a lawful apprehension is being attempted. That is a matter of evidence. It is not necessary, in my opinion, as an element of the offence for the prosecution to establish that lawful apprehension was being attempted, or even contemplated. In my opinion, the elements of a s 43(c) offence are:
(i) the commission of an offence (whether by the accused or some other person);
(ii)a right to apprehend or detain lawfully the accused (or another) for the commission of that offence;[11]
(iii)an assault on a person by the accused;
(iv)an intention by the accused, in committing the assault, to resist or prevent his or her own lawful apprehension or detention, or that of another, for that offence.
[11] CLCA s 271; Summary Offences Act s 76.
It is not necessary in the circumstances of this case to consider circumstances in which the accused has an honest but mistaken view about the right of the victim to effect an apprehension. As proof that the apprehension or detention of the appellant was actually being attempted, or was at least intended, was not an element to be proved, the absence of evidence to that effect in the present case was immaterial.
The Evidence of the Appellant’s Intention
Ms David submitted that even if these first two points failed, there was, in any event, insufficient evidence from which the magistrate could have concluded beyond reasonable doubt that the appellant did commit his assaults with an intention to prevent lawful apprehension.
I do not accept this submission. I consider that there was a considerable amount of evidence from which the magistrate was entitled to conclude that the appellant did commit the assaults on Ms Cotton and Ms Wilding with the intention of preventing his lawful apprehension by them. The appellant was accosted immediately after leaving the shop without paying for CDs which he had put in his jeans. Ms Cotton and Ms Wilding identified themselves as representatives of the store and demanded the return of the CDs. On the appellant’s initial refusal, they were insistent. The CDs were thereupon produced by the appellant. The situation had all the hallmarks of the appellant having been caught and confronted red-handed. Although it was not the intention of the store representatives to apprehend the appellant, that had not been communicated to him. He must have been aware that there was a real prospect of his being apprehended. He said in his cross-examination that he had “a fair idea” that it would be general practice when someone is caught shoplifting for them to be stopped and then for the police to be called. Ms Curtis’ evidence that the appellant said “Run” at about the same time as assaulting the two women, coupled with the fact that the appellant did then run, is a strong piece of circumstantial evidence pointing to the purpose of the assault. The assaults could not have been for the purpose of avoiding having to hand over the CDs – they had already been handed over. The appellant claimed that it was Ms Curtis who had said “Run” and gave an explanation for the assault (panic), but his evidence was entirely rejected by the magistrate. These matters, in combination, suggest that the magistrate’s conclusion that the assaults were committed with the requisite intention was not only open but well justified. Indeed, on the evidence accepted by the magistrate, any other conclusion would have been surprising.
The Magistrate’s Reasoning
Ms David then made a submission concerning the magistrate’s reasoning. It is evident that the magistrate did consider that proof that an apprehension was being effected was an element of the offence. This is evident in the following passage from the magistrate’s reasons:
I am satisfied also to the requisite level that Ms Cotton with the assistance of Ms Wilding was attempting to prevent the defendant from leaving the vicinity of the shopping centre at the time this incident occurred and therefore was lawfully exercising a power of arrest. I am also satisfied the defendant knew why the two people – Ms Cotton and Ms Wilding – had stopped him and his action in striking both with the CD rack was done with the intention of escaping detention, as was evident by him running away after the incident.
The submission was that the magistrate had reasoned to his conclusion that the appellant did have the requisite intention from his finding that Ms Cotton and Ms Wilding were attempting to prevent the appellant leaving the vicinity of the shopping centre, and were exercising a power of arrest. If Ms Cotton and Ms Wilding were not attempting to exercise a power of lawful arrest, the appellant could not, so the argument ran, have known that they were doing so, and, insofar as the finding as to his state of mind depended on the finding that he did, it was flawed.
At one level, this submission has a plausibility, but I do not consider that it should be accepted. Implicit in the magistrate’s finding that the appellant knew why Ms Cotton and Ms Wilding had stopped him is a finding that the appellant believed he had been stopped so as to be apprehended. That finding was independent of the finding as to the intention of Ms Cotton and Ms Wilding.
For these reasons, my opinion is that, save for the correction of the Magistrates Court record, the appeal against convictions should be dismissed.
Appeal Against Sentence
The magistrate regarded the assaults as serious. They resulted in significant injuries to Ms Cotton in particular. They were inflicted on two persons who were doing no more than carrying out their employment duties in an acceptable way.
The relevant penalty for the offence of assault occasioning actual bodily harm is imprisonment for a period not exceeding five years. The maximum for the assault on Ms Wilding is imprisonment for a term not exceeding five years. As already noted, the magistrate imposed a single sentence of eight months imprisonment for these two offences.
The appellant, who was 37 years old at the time of the offending, has an extensive history of offending. He has three previous court appearances for drink driving offences, two prior court appearances for offences of dishonesty, three convictions for drug offences, 16 convictions for driving an unregistered vehicle, eight convictions for driving an uninsured vehicle, nine convictions for driving whilst unlicensed, and four for driving whilst disqualified from holding a driver’s licence. It is a record which suggests that the appellant has little respect for the law and law enforcement. That is particularly relevant as the present offending occurred in a context in which the appellant apprehended that a form of law enforcement was about to occur.
Whilst it is true that the appellant does not have any prior convictions for offences of violence, that was a matter emphasised before the magistrate, and there is no reason to suppose that it was overlooked by him.
The appellant was on parole at the time that he was sentenced by the magistrate (but not at the time of the commission of the subject offences). That circumstance is governed by s 74A of the Correctional Services Act 1982. Section 74A provides:
Where a person who has been released on parole is sentenced to imprisonment for an offence committed before release on parole or for non-payment of a pecuniary sum—
(a) the parole is suspended for the duration of the imprisonment actually served in prison in pursuance of the subsequent sentence; and
(b) on release from prison—
(i)the person will continue on parole in respect of the sentence that was first imposed for the balance of the period of parole remaining as at the date of the commencement of the subsequent sentence; and
(ii)if released on parole from the subsequent sentence, the person will on release also be on parole in respect of that sentence for the period of that parole.
Section 74A provides, in effect, for a suspension of the period of parole whilst the appellant serves the period of imprisonment imposed by the magistrate. There was no material put before the magistrate suggesting that the suspension of the period of parole would have any particular adverse effect on the appellant or that it would interfere with any particular regimes for rehabilitation which had been put in place as a condition of his parole.
The appellant has a 12 year old son of whom he has custody. Whilst in prison, he is not able to attend the care of his son. It was submitted that this was a factor which should have militated against the imposition of a prison sentence or, at the least, suspension of any sentence which was imposed. However, this was also a factor impressed upon the magistrate in the submissions on sentence. It was not overlooked by the magistrate. I also observe that despite having the care for his son and for his development and upbringing, the appellant committed the subject offences in the presence of that son.
The decision to impose a sentence of imprisonment, and not to suspend that sentence involved an exercise of discretion by the magistrate. The principles upon which this Court interferes with that exercise of discretion are well established. This Court will interfere with a sentencing decision where it is satisfied that a magistrate has failed to take into account a relevant matter, or has taken into account an irrelevant matter, or has proceeded on some incorrect sentencing principle, or where, even though unable to identify any particular error, it is satisfied that the sentence imposed by the magistrate is plainly excessive.[12] I am unable to detect any such error in this case. Nor do I consider that the magistrate’s imposition of a sentence of imprisonment, and his refusal to suspend that sentence, has resulted in a sentence which is manifestly excessive. It follows that I consider that the appeal against sentence should be dismissed.
[12] Wittwer v Police [2004] SASC 226.
Conclusion
The appeal against convictions is allowed for the limited purpose of directing that the record of outcome in the Magistrates Court be amended so as to record that the appellant was convicted on Counts 2 and 4 only and that Count 3 was dismissed without further penalty. In all other respects the appeal against conviction is dismissed. The appeal against sentence is also dismissed.