Markl v Police - [2005] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MARKL v POLICE
Judgment of The Honourable Justice Besanko
15 April 2005
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against convictions recorded and sentence imposed by Magistrate – where appellant pleaded guilty to two counts of unlawful possession – where appellant’s solicitor had advised him that a term of imprisonment was unlikely if he pleaded guilty – where convictions were recorded and appellant was sentenced to six months imprisonment – whether there is a reasonable apprehension that a miscarriage of justice has occurred – whether the sentence is manifestly excessive - appeal against conviction dismissed – appeal against sentence allowed, sentence of imprisonment suspended on condition that appellant enter into a bond to be of good behaviour for two years.
Magistrates Court Act 1991 s 42; Summary Offences Act 1953 s 41; Criminal Law (Sentencing) Act 1988 s 18A; Criminal Law Consolidation Act 1935 s 86A, referred to.
Rainbird v Samuels (1972) 4 SASR 187; Stengle v Wells (Unreported 30 April 1985, judgment no S4958); R v Cranssen (1936) 55 CLR 509; Police v Mariner (2002) 222 LSJS 499; R v Perre (1986) 41 SASR 105, considered.

MARKL v POLICE
[2005] SASC 141
Magistrates Appeal

BESANKO J: This is an appeal against convictions recorded by a Magistrate and a sentence imposed by the same Magistrate. The appellant is Charles John Markl and the appeal is brought pursuant to s 42 of the Magistrates Court Act 1991.
On 14^th July 2004 the appellant was charged on complaint by the respondent with two offences. The first charge was that on 8^th October 2003 the appellant and his de facto partner, Kathy Zaparenkov-Markl, at Pinnaroo in the State of South Australia had in their possession personal property, namely a Nissan Patrol motor vehicle, which either at the time of such possession, or at a subsequent time before the making of the complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means, contrary to s 41 of the Summary Offences Act 1953 (“SOA”). I will refer to this charge as the unlawful possession of the motor vehicle charge. The second charge was that on the same date the appellant at the same place had in his possession toys, which either at the time of such possession, or at a subsequent time before the making of the complaint in respect of such possession, were reasonably suspected of having been stolen or obtained by unlawful means, contrary to s 41 of the SOA. I will refer to this charge as the unlawful possession of the toys charge.
On 14^th July 2004 in the Magistrates Court sitting at Berri in the State of South Australia the appellant pleaded guilty to both charges and convictions were recorded against him. The Magistrate imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“CLSA”) of six months imprisonment commencing forthwith. On the same day, Ms Zaparenkov-Markl pleaded guilty to the unlawful possession of a motor vehicle charge and a conviction was recorded against her. She was sentenced to four months imprisonment which was suspended upon her entering into a bond of $400 to be of good behaviour for a period of 12 months.
The appellant appeals against the decision of the Magistrate to record convictions. He submits that the convictions should be set aside even though he entered pleas of guilty. In the alternative, he appeals against the sentence imposed which he submits is manifestly excessive.
Ms Zaparenkov-Markl also appealed against the recording of a conviction against her and, in the alternative, the sentence imposed upon her. I have already dealt with her appeal. On 29^th November 2004 I allowed her appeal and I set aside the conviction and referred the charge back to the Magistrates Court for hearing. That course was not opposed by the respondent and my reasons for making those orders in her appeal will become apparent in due course.
It is convenient to start my consideration of the appellant’s appeal by briefly summarising the prosecution case against the appellant.
The prosecution case
A1 Car Truck Trailer Rentals Pty Ltd is a car, truck and trailer rental agency operating in the State of Queensland (“the agency”). On 21^st August 2003 at about 1.00 pm, the appellant and Ms Zaparenkov-Markl entered the premises of the agency. They were there to hire a vehicle and the appellant referred to a booking arranged previously over the telephone. The appellant said he wished to collect a white Nissan Patrol. This vehicle was registered in Queensland and was valued at $57,272.05. A hiring agreement was entered into and the appellant of 5 Fairy Street, Bell Post Hill, became the hirer of the vehicle. He produced a Victorian driver’s licence as identification and he also gave the agency his mobile telephone number.
The appellant told the representative of the agency with whom he was dealing that he owned a business called “KC Pictures and Frames” which business sold to others pictures and framed pictures. The appellant asked if he could extend the hire of the vehicle if necessary and he was advised by the representative of the agency that he could do so only if he contacted the agency before the agreed termination date.
The appellant was required to pay a deposit of $250 and the hiring fee for a one week period which was $962.50. The motor vehicle was due to be returned on 28^th August 2003. The appellant wrote out two cheques for the above amounts on the account of KC Pictures and Frames at the National Australia Bank. The appellant left with the vehicle at about 1.30 pm on 21^st August 2003.
The two cheques tendered by the appellant were dishonoured. The account of KC Pictures and Frames was closed and had been for some time. Attempts by the agency to contact the appellant via his mobile telephone were unsuccessful.
On 23^rd September 2003 the appellant purchased toys to the value of $621.74 from a business called Morning Sky Trading Pty Ltd. The appellant presented a cheque for payment on the account of KC Pictures and Frames at the National Australia Bank. The cheque was dishonoured and returned with a note indicating that the account had been closed.
At about 11.00 am on 8^th October 2003, the police located the appellant at the Pinnaroo Showgrounds in the State of South Australia. The motor vehicle was located as were the toys and a chequebook in the name of KC Pictures and Frames. Both the appellant and Ms Zaparenkov-Markl were charged with offences arising out of the above events and spent some time in custody before being granted bail.
Appeal against conviction
A number of affidavits were put before me, including an affidavit of the appellant. The appellant was briefly cross-examined on the contents of his affidavit. In the result I think that there was probably one area of dispute relevant to the issues before me and that relates to the advice tendered to the appellant by his solicitor. I will address that issue in due course. Otherwise, the factual findings which follow are based on the affidavit evidence put before me.
Events before 14^th July 2004
Initially the appellant was charged with the theft of the motor vehicle. That charge was not pressed, and on 5^th February 2004 the appellant and Ms Zaparenkov-Markl were charged on complaint with the illegal use of the motor vehicle contrary to s 86A of the Criminal Law Consolidation Act 1935 (“CLCA”), unlawful possession of the toys in similar terms to the second charge set out above and unlawful possession of a motel room key. Up to 14^th July 2004 the appellant and Ms Zaparenkov-Markl were facing the charges set out in the complaint dated 5^th February 2004.
In the period leading up to 14^th July 2004 the appellant was represented by Ms Sandra Pearce of Fleurieu Law and Ms Zaparenkov-Markl was represented by Mr Nicholas McShane. Mr McShane was briefed at short notice to appear for Ms Zaparenkov-Markl at the trial on 14^th July 2004.
The appellant’s initial instructions to Ms Pearce were that he wished to contest the charges.
The police officer handling the two charges in the Magistrates Court sitting at Berri was Mr Lincoln Gore. He has sworn an affidavit which was tendered in evidence before me. He telephoned Mr McShane on 13^th July 2004 and advised him that the charges against Ms Zaparenkov-Markl were being withdrawn and that the appellant was pleading guilty to some charges. Mr McShane, who has also sworn an affidavit which was tendered in evidence before me, states that he sought and obtained confirmation in writing of that advice, and as a result he did not attend the Magistrates Court sitting at Berri on 14^th July 2004. He spoke to Ms Pearce and there was never any suggestion by her that she was acting for Ms Zaparenkov-Markl. He was never advised by anyone that the arrangement involving the withdrawal of the charges against Ms Zaparenkov-Markl was changed.
Mr Gore states that on 9^th July Ms Pearce contacted him and told him that she would be representing both the appellant and Ms Zaparenkov-Markl on 14^th July 2004. There were discussions about resolving the matter, and on 13^th July 2004 it was agreed that the appellant would plead guilty to the first and second charges in the complaint dated 5^th February 2004 and the third charge would be withdrawn. All charges against Ms Zaparenkov-Markl were to be withdrawn. This was the affidavit evidence of Mr Gore and Mr McShane.
Two affidavits of Ms Pearce, an affidavit of the appellant and an affidavit of Ms Zaparenkov-Markl were also tendered in evidence before me. As I have said, the appellant also gave brief oral evidence. There is no evidence from Ms Pearce, the appellant or Ms Zaparenkov-Markl which deals in any detail with the events immediately prior to 14^th July 2004.
Ms Pearce states that she was instructed by the appellant on or about 24^th October 2003 and the appellant’s initial instructions were that he wished to contest the charges. She advised Ms Zaparenkov-Markl that she could not act for her and she states that she was not acting for her. About two or three days before 14^th July 2004 she had some discussions with Mr Gore and he advised her that he would be conducting the trial.
The appellant states that he attended two pre-trial conferences in relation to the charges, and that at the second conference on 19^th April 2004 he discussed a proposal whereby he would plead guilty to the charges of the illegal use of the motor vehicle and the unlawful possession of the toys and the third charge relating to the motel key and the charges against Ms Zaparenkov-Markl would be withdrawn. He could not hear what was said at the pre-trial conference but he discussed the proposal with Ms Pearce again after the pre-trial conference.
In her affidavit Ms Zaparenkov-Markl does not deal with the topic of any discussions she had with Ms Pearce immediately prior to 14^th July 2004.
The events immediately prior to the hearing on 14^th July 2004 are not directly relevant to the appellant’s submission that in relation to the convictions there has been a miscarriage of justice. In my opinion, it is important that the proposal that the appellant plead guilty to the first two charges in the complaint dated 5^th February 2004 and that the third charge against him and the charges against Ms Zaparenkov-Markl would be withdrawn was discussed with him by Ms Pearce prior to 14^th July 2004, although how it became the firm proposal suggested by the evidence of Mr Gore and Mr McShane is unclear.
The events on 14^th July 2004
Certain charges against the appellant were called on before the Magistrate on two occasions on 14^th July 2004. Ms Pearce had conversations with the appellant and Ms Zaparenkov-Markl before the charges in the complaint dated 5^th February 2004 were first called on and again before the charges in the complaint dated 14^th February 2004 were called on.
It is convenient to consider first what happened before the Magistrate and the discussions between Mr Gore and Ms Pearce and to consider separately the discussions which took place between Ms Pearce and the appellant and Ms Zaparenkov-Markl. There is little dispute as to the events before the Magistrate and the discussions between Mr Gore and Ms Pearce.
I take what follows from the affidavit of Mr Gore which I accept as an accurate statement of the events about which he has deposed. When the complaint dated 5^th February 2004 was called on before the Magistrate, Mr Gore informed the Magistrate that on pleas of guilty to the first and second charges, the third charge against the appellant would be withdrawn. The charges against Ms Zaparenkov-Markl would also be withdrawn. The appellant pleaded guilty to the first and second charges.
Mr Gore then outlined the prosecution case in the terms I have set out above. Mr Gore then made brief submissions on penalty which I will return to when considering the appeal against sentence.
Ms Pearce then made submissions on behalf of the appellant. She said that the appellant had made arrangements for progress payments to be made to the agency and that Ms Zaparenkov-Markl handled all the financial arrangements of the business, KC Pictures and Frames. Ms Pearce’s account of events to this stage is not materially different.
The Magistrate at this point said that in view of the submissions made by Ms Pearce to the effect that Ms Zaparenkov-Markl handled the financial affairs of KC Pictures and Frames and that the appellant had made arrangements for progress payments to be made to the agency, he could not accept the appellant’s plea of guilty to the first charge. He adjourned the hearing. There were then discussions between Mr Gore and Ms Pearce and between Ms Pearce on the one hand and the appellant and Ms Zaparenkov-Markl on the other. Mr Gore was not aware that the appellant would assert that he believed progress payments would be made or that Ms Zaparenkov-Markl handled all the bookwork and banking. He spoke to Ms Pearce in an effort to resolve the matter. He did not speak to the appellant and Ms Zaparenkov-Markl. He suggested to Ms Pearce that he would lay a new set of charges in the terms set out at the beginning of these reasons. After discussing the matter with the appellant and Ms Zaparenkov-Markl, Ms Pearce agreed to the laying of a fresh complaint as proposed by Mr Gore. It seems that Mr Gore told Ms Pearce that he would say nothing on the question of penalty.
Mr Gore laid a fresh complaint on 14^th July 2004 alleging unlawful possession of the motor vehicle by the appellant and Ms Zaparenkov-Markl and unlawful possession of the toys by the appellant. When the hearing resumed before the Magistrate the existing complaint was withdrawn (ie., the complaint dated 5^th February 2004) and the appellant pleaded guilty to the charges of unlawful possession of the motor vehicle and the toys and Ms Zaparenkov-Markl pleaded guilty to unlawful possession of the motor vehicle.
Mr Gore told the Magistrate that he relied on the matters which he had previously stated, and he said Ms Zaparenkov-Markl had been present when the motor vehicle was hired and the cheques written out and her counsel had previously stated that she was responsible for the financial affairs of the business. He pointed out that the bank documents suggested that the account of the business was in both names. Mr Gore made no submissions as to penalty. Ms Pearce then made submissions the substance of which Mr Gore was unable to recall.
Ms Pearce was able to relate the submissions she then made to the Magistrate and I have no reason to doubt her account. She submitted that at the time the motor vehicle was hired the appellant was heavily committed in the business. He relied heavily on Ms Zaparenkov-Markl to attend to the bookwork and banking. He thought progress payments were being made to the agency although he knew it was “late to be returned”. I assume what was meant by this was that the appellant knew that the progress payments had fallen behind. She submitted that on 28^th March 2004 the appellant’s sister telephoned the agency to say Ms Zaparenkov-Markl was ill and the illness was causing a delay in returning the motor vehicle. He was shocked to be approached by the police. His work circumstances had meant the appellant had not properly checked the state of the account with the National Australia Bank. Ms Pearce also made submissions about penalty which I will discuss when considering the appeal against sentence.
I pause at this point to say that the Magistrate made detailed remarks about penalty. In the course of those remarks he made clear the version of events which he accepted for the purposes of sentencing the appellant and Ms Zaparenkov-Markl. In short, he accepted the prosecution’s version of events. The bank account of KC Pictures and Frames had been closed about 18 months before August 2003. Both defendants were signatories to the account and both were aware that it had been closed. The Magistrate found Ms Zaparenkov-Markl had telephoned the agency pretending to be the appellant’s sister and she said the appellant was in hospital and the motor vehicle could not be returned. The Magistrate referred to the acts of the appellant and Ms Zaparenkov-Markl as exhibiting “blatant dishonesty”.
Before turning to consider the discussions between the appellant and Ms Pearce, it is convenient at this point to briefly identify the relevant legal principles when, on appeal from a court of summary jurisdiction, the appellant submits that a conviction based on a plea of guilty should be set aside. The principal question is whether, in the circumstances which have occurred, there is a reasonable apprehension that justice miscarried in the court below. In Rainbird v Samuels (1972) 4 SASR 187 Walters J said (at 188 – 189):
I do not think it can be doubted that there is jurisdiction in this Court to entertain an appeal against a conviction based on a plea of guilty in a court of summary jurisdiction, where the consequence is a manifest miscarriage of justice (cf. Gray v. Jones [1948] SASR 201). If the entry of a plea of guilty has been brought about by mistake or misapprehension of the nature of the charge, or has been induced by an improper threat or promise on the part of a police officer or other person in authority, and if it appears that but for that mistake, misapprehension or inducement, the plea would not have been made, and if it also appears that a miscarriage of justice has resulted, then an appellate court has power, indeed a mandatory obligation, to quash the conviction and the penalty imposed (cf. R. v. Forde [1923] 2 KB 400 at 403; R. v. Murphy [1965] VR 187, per Sholl J. at p. 190).
With respect, these are important matters, but as Cox J said in Stengle v Wells (unreported 30 April 1985, judgment no. S4958) it must be borne in mind that the principal question is always whether there is a reasonable apprehension that justice miscarried in the court below. It must also be borne in mind that a man who well understands the charge against him and who decides to plead guilty for reasons of expediency cannot afterwards complain on the basis that all the while he considered that he was innocent (R v Cranssen (1936) 55 CLR 509).

I turn now to consider the advice tendered by Ms Pearce to the appellant. It is convenient to do that by reference to his pleas of guilty to the charges in the complaint dated 5^th February 2004 and then by reference to the charges in the complaint dated 14^th July 2004.
Ms Pearce met the appellant and Ms Zaparenkov-Markl in a coffee shop before the charges were first called on before the Magistrate on 14^th July 2004. She discussed her concerns about the charges proceeding to trial although, perhaps for reasons of legal professional privilege, she does not state in her affidavit what those concerns were. She took a detailed history from the appellant and he gave her instructions that he would plead guilty to the first two charges in the complaint dated 5^th February 2004. Not surprisingly none of those facts are in dispute. The appellant states that there were a variety of reasons why he decided to plead guilty. I will return to those reasons later. It is sufficient to say that there is nothing in the circumstances or the appellant’s reasons for pleading guilty to suggest that to this point there had been or may have been a miscarriage of justice.
After the matter had been adjourned because the Magistrate was concerned about accepting a plea of guilty in relation to the first charge in the complaint dated 5^th February 2004, Ms Pearce discussed the proposal then put forward by Mr Gore with the appellant and Ms Zaparenkov-Markl. Ms Pearce provided the following advice to the appellant:
1The proposal was a good one because the first proposed charge was a lesser charge to the existing first charge. The penalty for illegal use of a motor vehicle for a first offence is imprisonment for two years and a mandatory driver’s licence disqualification of 12 months. The penalty for unlawful possession is a maximum penalty of $10,000 or imprisonment for two years. The appellant was concerned about losing his licence and the effect of that on his ability to earn an income.
2Because the appellant’s criminal record was extremely old it was likely he would receive a suspended sentence and be placed on a good behaviour bond, possibly for as long as three years. Ms Pearce advised the appellant of what a bond was and of the consequences of breaching a bond.
3Ms Pearce advised the appellant that his alternative to accepting the offer was to proceed to trial. She advised him that she had concerns about the matter proceeding to trial and she advised him of what those concerns were.
I reject the appellant’s evidence to the effect that Ms Pearce in effect guaranteed that he would not be given an immediate custodial sentence. It is highly unlikely that a solicitor would give such advice, and, in any event, it is not consistent with the evidence put forward by Ms Pearce and Ms Zaparenkov-Markl.
Ms Pearce then proceeded to provide certain advice to Ms Zaparenkov-Markl. In the circumstances it is not necessary for me to set out the details of that advice.
The appellant and Ms Zaparenkov-Markl instructed Ms Pearce to accept the proposal on their behalf which she subsequently did.
In his affidavit, the appellant said that he decided to plead guilty to the charges of illegal use of a motor vehicle and unlawful possession of the toys (ie., the first two charges in the complaint dated 5^th February 2004) for various reasons which might be described as matters of expediency and that he did not do so because he was guilty of the offences. In fact, he claims that he did not act dishonestly because he had forgotten at the time the motor vehicle was hired that the bank account of KC Pictures and Frames had been closed and thereafter, progress payments were made to the agency by depositing monies into accounts as the appellant and Ms Zaparenkov-Markl travelled through New South Wales, South Australia and Victoria.
Before he pleaded guilty to the illegal use of the motor vehicle charge the appellant was aware of the principal allegations made by the respondent, namely, that he passed bad cheques and did not make progress or hiring payments to the agency. He had the agency’s motor vehicle in circumstances in which he was not legally entitled to have it. He might have had any number of reasons for pleading guilty to the charges in the complaint dated 5^th February 2004 other than a recognition of guilt, but I see no reason to apprehend a miscarriage of justice in relation to those charges. The question then becomes whether anything happened between that point and the entering of guilty pleas to the charges in the complaint dated 14^th July 2004 that gives rise to a reasonable apprehension that a miscarriage of justice occurred. I do not think anything did happen which has that consequence.
The offence of unlawful possession of the motor vehicle was a less serious offence than the offence of illegal use of the motor vehicle certainly in a respect important to the appellant (ie., licence disqualification). The essential allegations made by the respondent remained the same and I think the appellant was aware of that fact even if he did not know in precise terms the legal elements of the offence of unlawful possession. I think that he also knew that the fresh or new complaint would include a charge against Ms Zaparenkov-Markl.
As I have said, I do not think Ms Pearce gave the appellant a guarantee that he would not go to prison. Her advice about the likely penalty might have been optimistic, perhaps unduly optimistic, but that is not ground for setting aside a conviction based on a guilty plea.
The other matter which the appellant submitted gave rise to a reasonable apprehension that a miscarriage of justice had occurred was the fact that Ms Pearce had advised Ms Zaparenkov-Markl and therefore placed herself in a position of conflict. There is no doubt that Ms Pearce was in a very awkward position as far as Ms Zaparenkov-Markl was concerned and I have looked carefully at this submission. I do not think that the appellant’s understanding of events, or the advice given to him by Ms Pearce, or the submissions Ms Pearce made to the Court, were affected by Ms Pearce’s relationship with Ms Zaparenkov-Markl and therefore I do not think there is reason to apprehend that a miscarriage of justice had occurred by reason of that relationship.
For these reasons, I do not think that there is a reasonable apprehension that justice has miscarried. In those circumstances it is unnecessary for me to consider the evidence of the appellant that he has a good defence to the first charge in the complaint dated 14^th July 2004.
Appeal against sentence
At the time he was sentenced the appellant was 44 years of age. The appellant lived in an institution from three years of age to approximately 18 years of age. He has a substantial criminal record. It seems that his offending started when he was about 12 years old and it continued until he was about 33 years old. There was no offending between 1993 and the date of the offences for which he was convicted. The appellant’s record consists of a variety of offences including offences of dishonesty and breaking and entering, assault and illegal use.
The appellant was and is living in a de facto relationship with Ms Zaparenkov-Markl and they have one child. Another child was expected in February 2005. Ms Zaparenkov-Markl has two older children from another relationship. They live in Geelong, Victoria, and they conduct a business of selling toys, other gifts, prints and frames, mainly at country markets.
The appellant had spent about three and a half months (105 days) in custody and was on home detention bail for a time.
The Magistrate decided to impose one penalty pursuant to s 18A of the CLSA. The maximum penalty for a breach of s 41 of the SOA is a fine of $10,000 or imprisonment for two years. The Magistrate said that the offences involved blatant dishonesty and he sentenced the appellant on the version of facts put forward by the prosecution. He referred to the appellant’s criminal record as involving “very many acts of dishonesty” and as involving an “appalling history of criminal offending”. He gave the appellant some credit for the fact that he had not been in trouble for about 11 years. He also gave the appellant some credit for his pleas of guilty.
The Magistrate used a starting point for both offences of 12 months imprisonment. He reduced that to nine months by reason of the period of about three and a half months which the appellant had spent in custody. He then reduced the nine months to seven months on account of the appellant’s pleas of guilty, and he then reduced the seven month period by a further period of one month because the appellant had kept himself out of trouble for about 11 years. The Magistrate declined to suspend the sentence even though he acknowledged the effect imprisonment would have on the appellant’s immediate and extended families. The Magistrate regarded the question of deterrence as very important.
There were no submissions made to me about the mental element for the offence of illegal use (s 86A CLCA see Police v Mariner (2002) 222 LSJS 499) and the mental element, if any, for the offence of unlawful possession (s 41 SOA). It seems that there is no mental element for the offence under s 41 but a defendant has a defence if he can prove that he obtained possession of the relevant property honestly (s 41(2)).
But for the fact that the appellant had spent three and a half months in custody before being sentenced and had stayed out of trouble for about 11 years, I would not be inclined to interfere with the sentence imposed by the Magistrate. The Magistrate was entitled to proceed on the prosecution’s version of the facts (R v Perre (1986) 41 SASR 105) and therefore to characterise the offences as involving blatant dishonesty. Furthermore, the Magistrate was right to characterise the appellant’s criminal record as very bad. However, I think the Magistrate failed to give substantial credit for the fact that the appellant had stayed out of trouble for about 11 years. With respect, I think he should have done that. I think that it was an appropriate case to acknowledge the period the appellant had spent in custody and to suspend a sentence of imprisonment on appropriate conditions. The period already spent in prison recognises the importance of deterrence while the suspension of the future sentence of imprisonment recognises the need to encourage the appellant’s rehabilitation bearing in mind that he had stayed out of trouble for about 11 years.
Conclusion
I would dismiss the appeal against the recording of the convictions. I would allow the appeal against the sentence imposed. I would impose a sentence of six months imprisonment but I would suspend it on condition that the appellant enter into a bond to be of good behaviour for two years. I will hear the parties as to other conditions of the bond and as to the appropriate orders.