Marks-Vincenti v The Queen
[2015] VSCA 54
•1 April 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0252
| TONY MARKS-VINCENTI | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | MAXWELL P and WEINBERG and BEACH JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 17 March 2015 | |
| DATE OF JUDGMENT: | 1 April 2015 | 1st Revision: 2 April 2015 para [42] |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 54 | |
| JUDGMENT APPEALED FROM: | DPP v Marks-Vincenti (Unreported, County Court of Victoria, Judge Cotterell, 27 October 2014) | |
---
CRIMINAL LAW – Conviction – Aggravated burglary – Applicant’s stepfather lessee of residential premises – Applicant’s half-sister and her partner also resided in house – Stepfather gave qualified approval to applicant to visit him at residence except when ‘drunk’ – Half-sister and partner purported to ban applicant from entering premises – Whether applicant could be found, in those circumstances, to have entered as a trespasser – Half-sister and partner not in exclusive possession of house and lacked authority to revoke right of entry granted by stepfather – Alternative basis upon which prosecution could be mounted – Dependent upon inference as to limited nature of stepfather’s permission – Conviction quashed and new trial, confined to alternative case, ordered.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S R Kennedy | Tait Lawyers |
| For the Crown | Mr D A Trapnell QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
MAXWELL P
WEINBERG JA
BEACH JA:
On 17 September 2014, the applicant (now aged 34) was convicted by a jury in the County Court at Horsham of one charge of aggravated burglary, and one charge of common law assault. He was sentenced on 27 October 2014 as follows:
Charge Offence Maximum Sentence Cumulation 1 Aggravated burglary [s 77(1) Crimes Act 1958] 25 years 9 months Base 3 Common law assault 5 years 6 months Nil Total effective sentence:
9 months’ imprisonment
Other orders: That both sentences be served concurrently with the balance of a parole period then being served. Upon the completion of the term of imprisonment to serve a Community Correction Order for a period of 15 months (250 hours unpaid community work).
The applicant sought leave to appeal against conviction, but in respect of the aggravated burglary charge only. At the hearing of the leave application, senior counsel for the Crown conceded that one of the grounds relied upon by the applicant must succeed, with the consequence that the conviction for aggravated burglary ought be quashed, and a re-trial ordered in respect of that charge.
In our view, that concession was entirely proper. On that basis, we granted leave to appeal, and allowed the appeal instanter. We made orders directing that a re-trial take place in respect of the aggravated burglary charge. We indicated at the time that we would publish our detailed reasons in due course. These are those reasons.
Grounds of appeal
The applicant sought leave to appeal against conviction on a number of grounds. For present purposes, it is necessary only to set out the ground in respect of which the concession was made, and the appeal allowed. That ground was as follows:
(b)[The trial judge] made an error of law in that she instructed the jury that it was open to them to come to a finding of guilt, on the basis that the applicant was told by a boarder at his father’s house, that he was not allowed to attend there anymore.
Circumstances of offending
The alleged offending was said by the Crown to have taken place at approximately 10.30pm on 13 October 2013 at a house in Lynott Street, Horsham. The applicant’s stepfather, Steven Haebich, was the lessee of that house. He was living there along with his daughter (the applicant’s half-sister), Stacy Marks-Haebich, and her two daughters (one of whom was aged 7, and the other aged 11 at the time of the offending). The evidence led at trial was that they had been living at the property for approximately two years, and that Ms Marks-Haebich paid about $100 in rent (presumably per week) to her father during that time, plus an additional unspecified amount for groceries. Ms Marks-Haebich was, in all likelihood, a contractual licensee, though, on one view, she might be regarded as a co-tenant.
The Crown case was that, on the night in question, the applicant entered his stepfather’s house, armed with a type of Aboriginal club known as a ‘waddy’. He proceeded to his half-sister’s room, whereupon he assaulted her.
At trial, the Crown relied primarily upon evidence from the applicant’s half-sister, and his stepfather. The applicant did not give evidence. The applicant’s half-sister claimed that she was inside her room, watching a movie with her daughters, when she heard a loud ‘thump’ coming from the rear of the house. Shortly afterwards, the applicant ‘barged’ into her room, armed with the waddy, and approached her bed. She claimed that he said to her ‘they’re around bashing my missus so I’ll come and bash theirs’. He then allegedly grabbed her, and began waving the waddy around near her face. He struck her to the side of her head with his hand. She claimed that the applicant did not ‘fully hit’ her, but that his ‘pinkie’ and ring finger had made contact near her cheekbone. The applicant also allegedly told her that he would get their mother, and other members of the family, to ‘bash’ her.
At around this time, the applicant’s stepfather entered the room. He gave evidence that he saw the applicant standing on his daughter’s mattress, with the waddy in his hand. He asked the applicant to come with him into the hallway so that they could talk, which the applicant did. The applicant told him ‘Don’t worry dad, I’m not here to get you, I’m here to get Dwayne Newton.’ By that time, the applicant had calmed down. He left the house approximately 20 minutes later.
The references that the applicant allegedly made to ‘Dwayne Newton’, and to ‘they’ being ‘around bashing my missus’, require some further explanation. Newton was, at the time, the boyfriend of the applicant’s half-sister. He had been living with her at the applicant’s stepfather’s home for about two years, although he was described as being ‘between houses’, and only staying there ‘on and off’.
On the afternoon of the day in question, an altercation had taken place at the applicant’s home. During the course of that altercation, the applicant’s girlfriend was allegedly assaulted. The applicant believed that Newton was involved in that assault.
The Crown case was that the applicant had gone to his stepfather’s house in order to exact retribution for the assault on his girlfriend. In that context, the Crown contended that, by his statement ‘they’re around bashing my missus so I’ll come and bash theirs’, the applicant was referring to Newton and his associates being responsible for assaulting the applicant’s girlfriend, and asserting that he was going to assault his half-sister in retaliation.
The trespass issue
A central issue in the trial, and the focus of this application, was whether the applicant had entered his stepfather’s house as a trespasser. That, of course, is an essential element of the charge of burglary under s 76 and, by extension, aggravated burglary under s 77, of the Crimes Act 1958. [1]
[1]An element of the offence of aggravated burglary under s 77 is that the accused committed a burglary as defined in s 76.
As we have indicated, the applicant did not live with his stepfather. The issue therefore turned on whether the applicant had permission to enter the home and, if so, the limits that had been imposed upon that permission.
The Crown’s case in this regard rested on the evidence led at trial from the applicant’s stepfather and half-sister. In examination in-chief, the applicant’s half-sister was asked specifically about the applicant’s permission to enter his stepfather’s home. The transcript reads as follows:
Prosecutor:Was the accused, Tony, as far as you were concerned allowed over to your place at that time as of 13 October 2013?
Marks-Haebich: No.
Prosecutor:Why not?
Marks-Haebich: Because we had an argument two weeks beforehand and he was banned from the house.
Prosecutor:What was that argument over?
Marks-Haebich: Money.
Prosecutor:What about money?
Marks-Haebich: He wanted money from me and my little brother.
Prosecutor:What was your attitude to giving him money?
Marks-Haebich: No.
Prosecutor:So why did you ban him from the house?
Marks-Haebich: Because he was demanding money from me and my little brother, very nasty to my little brother.
Prosecutor:Had you spoken to your father, Steven, about that?
Marks-Haebich: No.
Prosecutor:Had you told the accused that he wasn’t allowed to come over?
Marks-Haebich: Yes.
In cross-examination, the applicant’s half-sister was challenged as to her claim that she had told the applicant, some two weeks prior to the alleged offending, that he was ‘banned’ from coming to the house. At this point, her version of events changed somewhat. Whereas she had previously indicated that it was she who had told the applicant that he was not to come to the house, she now conceded that it was Newton who had issued that instruction, and not her. The relevant portion of the transcript reads as follows:
Counsel:I’ll just put it to you as I have to, I suggest you never told [the applicant] he wasn’t welcome round there at all?
Marks-Haebich: No, he got told, [the applicant’s girlfriend] was there when he got told —
Counsel:Who was?
Marks-Haebich: …[the applicant’s girlfriend] … Them two come round and they got told to leave.
Counsel:Did you tell them to leave or you just said they got told to leave — did you tell them or did someone else?
Marks-Haebich: I told [the applicant] that he wasn’t welcome there.
Counsel:For instance, was it [Newton] who told him?
Marks-Haebich: He also told him in the lounge. I was in my room when he come past and I told [the applicant’s girlfriend].
Counsel:Yes well can I put to you it was never you who told him to come round anymore it was [Newton].
Marks-Haebich: Okay then.
Counsel:That may be right, is it?
Marks-Haebich: Yep.
Counsel:All right I just want to get — clarify that. You may be saying that it was not you but [Newton] who told him not come [sic] round anymore?
Marks-Haebich: Yeah.
When re-examined on this issue, the applicant’s half-sister reiterated that it had been Newton, and not her, who had told the applicant that he was not to come to the house.
The applicant’s stepfather testified that he had a close relationship with the applicant, whom he had raised since he was 7 years old. He stated that the applicant was ‘welcome’ at his home, and would visit from time to time. The applicant’s stepfather was asked specifically about whether he was aware that the applicant was told previously that he was not allowed to come to the house. The following exchange took place:
Prosecutor:Now, did you have any awareness of [the applicant’s half-sister] having spoken to [the applicant] about whether he was allowed to come in the house?
Haebich:No.
Prosecutor:You didn’t?
Haebich:I only said to [the applicant], don’t come here when you’ve been drinking. That was ages before this.
As we have noted, the applicant did not give evidence at his trial. However, in his record of interview with police, which was led before the jury, the applicant was asked about whether he had permission to enter his stepfather’s house. The relevant portion of the transcript reads as follows:
Q215: Did you have permission to go there?
A:Yes, I’m allowed to go there whenever I want. Her dad was my dad first and he —
Q216:She [the applicant’s half-sister] says that two weeks ago you had an argument over money and after the argument you weren’t allowed —
A:It wasn’t over money.
…
Q218:After the argument she said you weren’t allowed in her house?
A:It’s not her house. She’s boarding there …
The Crown’s case on the trespass issue at trial
In light of the conflicting evidence from the applicant’s stepfather and his half-sister, the Crown sought to put its case that the applicant entered the house as a trespasser on two alternative bases.
First, the Crown contended that the applicant could be found to be a trespasser solely on the basis that he had been told by Newton, some weeks earlier, that he was not to come to his stepfather’s house.
Secondly, the Crown contended that the jury should infer that the applicant did not have permission to enter his stepfather’s home, given the particular circumstances of this case. The Crown pointed to the fact that the applicant’s right of entry into the house, as granted by his stepfather, was ‘conditional’ in the sense that he had been told, albeit ‘ages before’, that he was not to enter the house when he was drunk. Although there was no evidence that he was drunk on the night of the alleged offending, it was the prosecution case that he had entered the home armed with a waddy, intending to assault one or other of his half-sister, or Newton. The Crown contended that it was open to the jury, on this basis, to draw ‘a common sense inference’ that the applicant could not have had permission to enter the house in those circumstances, and that he must have known that to be the case.
The trial judge’s charge to the jury
During the course of the trial, and prior to the trial judge’s charge to the jury, the applicant’s counsel made a number of submissions on the issue of trespass. Most significantly for present purposes, he submitted that the applicant could not be found to be a trespasser on the first of the two alternative bases put by the Crown. That was because, even if the jury accepted that he had been told by Newton that he was not to come back to the home, such a prohibition had no legal effect. It was submitted that neither Newton, nor for that matter the applicant’s half-sister, had any lawful right to deny him entry to his stepfather’s home. Nor did they have any authority to revoke any right of entry that his stepfather, as the sole lessee of the premises, had previously granted to him.
The trial judge rejected that submission. Thus, in her charge to the jury, her Honour summarised the prosecution’s case on trespass as follows:
The argument of the prosecution is that he entered as a trespasser because … of the fact he had been told two weeks earlier by [the applicant’s half-sister] and her partner he was not welcome and not to come to the house and or … because his right to enter the premises was not totally open. It was limited in that he was not to attend if he was drunk and that was a limitation and in entering that night in the circumstances he did, he knew that he would be in breach, not that he was drunk but because of his behaviour and his intention to assault someone in the house if you find that he did indeed have that intention.
In relation to the first of the two bases relied upon by the Crown, namely the direction given to the applicant by Newton that he was not to enter the house, the trial judge said the following:
You may recall the evidence of [the applicant’s half-sister], that following an argument over the accused demanding money from her and her younger brother … [i]n her presence and at her request, her partner Dwayne Newton told the accused that he should not come back to the house and that, you may recall, the evidence was some two weeks earlier. The defence argument was firstly that he was not told not to come back and that neither Dwayne Newton or [the applicant’s half-sister] were in a position to forbid him. These are matters for you, you have to decide that. You may recall the evidence of Steven Haebich, the father, that Dwayne was living at the house for a period of two years with [the applicant’s half-sister] and her two children.
You may recall that [the applicant’s half-sister] said she was paying rent and contributing to shopping. It is a matter for you whether they were entitled to say do not come back in the circumstances that you have heard and whether that occurred or not. So it is whether or not they were paying rent, paying board as living in the house were entitled to tell him not to come back or whether they did and he should have known that he was not to go back at that stage.[2]
[2]Emphasis added.
Consideration
As we have noted, the charge of burglary under s 76 of the Crimes Act 1958 requires the prosecution to prove that the accused ‘entered any building or part of a building as a trespasser’.
In Barker v The Queen,[3] the High Court held that, subject to one qualification,[4] s 76 incorporates the common law concept of trespass. As to the meaning of trespass at common law, Mason J said:
The essence of trespass by wrongful entry consists in an entry without right or authority by one person on to the land of another who is in possession, using that word in its strict sense so as to include a person entitled to immediate and exclusive possession.[5]
[3](1983) 153 CLR 338 (‘Barker’).
[4]The qualification is that s 76, creating as it does a criminal offence, necessarily incorporates an element of mens rea. The Court held that the mens rea for burglary under s 76 is that the accused knows, or is reckless as to, the facts which make him or her a trespasser: see Barker (1983) 153 CLR 338, 348 (Mason J), 365 (Brennan and Deane JJ), 370 (Dawson J). See also Glanville Williams, Textbook of Criminal Law (Stevens & Sons, 2nd ed, 1983) 843.
[5]Barker (1983) 153 CLR 338, 342 (citations omitted). See also Williams, above n 4, 842-3.
The critical question raised in the present application is whether either Newton or the applicant’s half-sister had authority to prohibit the applicant from coming into the house, in circumstances where a (qualified) right of entry had been granted to him by his stepfather. In our view, and as the Crown rightly conceded, it is plain that they did not.
The first thing to note in relation to this conclusion is that neither Newton nor the applicant’s sister could, on any view, be said to have been entitled to ‘immediate and exclusive possession’ of the house. That entitlement resided solely with the applicant’s stepfather, as lessee of the property.
The evidence at trial was that the applicant’s half-sister had been living in the house, with her father’s permission, for approximately two years. During that time, she paid rent, and an additional amount for groceries. Newton had also been living ‘on and off’ at the house during that period, whilst he was in a relationship with the applicant’s half-sister, but did not pay rent or contribute to household expenses.
The applicant submitted that, in those circumstances, the interest that each of them had in the home could have amounted to no more than that of a lodger or boarder. It is, of course, trite law that neither a lodger nor boarder has exclusive possession of the premises that they occupy.[6] They are, instead, properly seen as mere licensees. In Noblett and Mansfield v Manley,[7] Mayo J expressed the matter this way:
The primary and usual meaning of ‘lodger’, as so defined, is ‘one who resides as an inmate in another person’s house, paying a certain sum periodically for the accommodation,’ or ‘one who occupies a hired room in another person’s house’ … A ‘boarder’ is one who … has his food, or food and lodging, at the house of another for compensation; one who lives in a boarding house, or with a family as one of its members, at a fixed rate; one who has food at another’s table, or meals and lodgings in his house for pay, or compensation, of any kind. In ordinary circumstances with both lodger and boarder legal possession remains in the person who provides room or rooms, or meals. He retains possession and control over rooms and means of ingress and egress, but grants license to guests who pay, or give consideration for the privilege.[8]
[6]Street v Mountford [1985] 2 All ER 289, 293.
[7][1952] SASR 155.
[8]Ibid 158 (citations omitted).
Similarly, Professor Peter Butt has said of those concepts:
A ‘boarder’ is a person for whom the landlord provides lodging and meals, even if only one meal per day. A ‘lodger’ is a person who occupies premises owned by someone else, the owner residing on the premises also and retaining control of them. In both cases, the owner retains legal possession and control over the rooms and the means of ingress and egress.[9]
[9]Peter Butt, Land Law (Lawbook Company, 6th ed, 2010) 285 (citations omitted).
In our view, and bearing in mind the somewhat limited evidence led at trial in relation to this issue, there is some force in the submission that both the applicant’s half-sister and Newton would, as a matter of law, properly have been regarded as lodgers or boarders. It is, however, unnecessary to decide that point. This is because, whatever the case may be in respect of the particular room or rooms which they occupied,[10] it could not, on any view, be contended that either of them had an entitlement to exclusive possession in relation to any of the common areas of the house. Plainly, that entitlement at all times resided with the applicant’s stepfather. It follows that neither the applicant’s half-sister, nor Newton, had authority to ban the applicant from entering the house, at least insofar as that ban was inconsistent with an express or implied right of entry granted to the applicant by his stepfather.[11]
[10]If it be the case that the applicant’s half-sister is properly seen as having been granted exclusive possession in respect of her own bedroom, then any right of entry granted to the applicant by his stepfather could not have extended to the applicant’s half-sister’s bedroom.
[11]See R v Chimirri [2010] VSCA 57, [30]–[35].
In its written submissions filed prior to the hearing of this appeal, the Crown relied upon R v Collins.[12] In that case, the house in question was occupied by the complainant (aged 18) and her mother. The defendant had climbed to the window of the bedroom in which the complainant was asleep. The complainant, assuming the defendant to be her boyfriend, allowed him to enter the room and have sexual intercourse with her. The English Court of Appeal (Criminal Division) held that the conviction for burglary should be set aside because the jury had not been directed as to whether the defendant entered the room knowing that he had no permission to do so, or being reckless as to that fact.
[12][1973] 1 QB 100 (‘Collins’).
In coming to its decision, the Court[13] rejected an argument put forward by the prosecution that the complainant, not being the tenant or occupier of the house, could not have had authority to grant the defendant permission to enter the home. Edmond Davies LJ, delivering the judgment of the Court, said:
The point was raised that, the complainant not being the tenant or occupier of the dwelling house and her mother being apparently in occupation, this girl herself could not in any event have extended an effective invitation to enter … Whatever be the position in the law of tort, to regard such a proposition as acceptable in the criminal law would be unthinkable.[14]
[13]Edmond Davies and Stephenson LJJ, Boreham J.
[14]Collins [1973] 1 QB 100, 107.
The Crown placed some reliance on this passage in its written submissions. It reasoned that, if a householder, such as the daughter in Collins, or the applicant’s half-sister in the present case, is legally authorised to grant a right of entry, the necessary corollary is that they must also have authority to revoke any such right.
However, as the Crown subsequently conceded at the hearing of this appeal, the reliance sought to be placed on Collins was misconceived. That is because, put simply, the passage in Collins quoted above says nothing as to the authority of a licensee, such as the daughter in that case, or the applicant’s half-sister in the present case, to revoke a right of entry which has been granted by, as it were, the licensor. As to the proper interpretation of the passage in Collins, Professor Glanville Williams has said:
[The passage] seems to mean, and it is surely right, that an adult (or even younger) member of the family has a general implied authority to invite friends to the house, so as to prevent those friends being trespassers as a matter of criminal law, unless the parent withdraws that authority in respect of a particular person. If the authority is not withdrawn, it does not matter that the parent would be highly displeased by the presence of the friend.[15]
[15]Williams, above n 4, 845.
That analysis is, with respect, plainly correct. It is also entirely consistent with what we have said earlier. Properly understood, Collins provides no support for the Crown’s contention that the applicant entered the premises as a trespasser.
We should add that, even assuming that the applicant’s half-sister was a co-tenant in respect of the premises, it is by no means clear that she would have had authority to revoke the right of entry given to the applicant by his stepfather.
In Chin Lan Hong v Cheung Poh Choo,[16] the Hong Kong Court of Appeal held that a licence granted by one tenant in common, which does not give exclusive possession of the property to the licensee, cannot be unilaterally revoked by a co-tenant. The reasoning adopted by the Court appears to have been that ‘since one tenant in common could lease his or her interest to a third party, notwithstanding the objection of other tenants in common, it would be open for one of a number of tenants in common to grant a licence of non-exclusive possession over commonly owned property to a third party, despite the opposition of the others’.[17]
[16][2005] HKCA 305 (‘Choo’).
[17]Pitt v Baxter (2007) 34 WAR 102, 107 [17].
A different approach was, however, taken by the New South Wales Court of Appeal in NSW v Koumdjiev.[18] In that case, Hodgson JA (with whom Beazley JA and Hislop J agreed), said:
In my opinion, the Hong Kong case is incorrect insofar as it asserts that, so long as a licence granted by a tenant in common does not purport to give exclusive possession, such a licence may both authorise another person, in the absence of the grantor and for an indefinite period, to do whatever a tenant in common can do, and also not be terminable by other tenants in common of the property. In my opinion, that gives too little weight to an incident of possession, namely the right or power to grant or withhold permission to others to enter property. Although one tenant in common can transfer or lease its interest, I do not think one tenant in common can, without such a transfer or lease, grant a licence to another, irrevocable by other tenants in common, if that licence is of a kind that goes beyond what is reasonable and incidental to the grantor’s possession and use and enjoyment of the property in common with the other tenants in common, and which interferes with the possession and use and enjoyment of the property by other tenants in common.[19]
[18](2005) 63 NSWLR 353 (‘Koumdjiev’).
[19]Ibid [40].
Both Choo and Koumdjiev were considered by the Western Australian Court of Appeal in Pitt v Baxter.[20] However, the Court considered it unnecessary, in light of the issues arising in that case, to express a conclusion as to which view was preferable.
[20](2007) 34 WAR 102.
Similarly, it is not necessary for this Court to resolve the conflict between the cases. However, we should say that, even if one were to adopt the test propounded in Koumdjiev, it is by no means clear that the applicant’s sister, still less Newton, would have been entitled unilaterally to revoke the right of entry granted to the applicant by his stepfather. That is because any licence granted by the stepfather would not have gone beyond what was ‘reasonable and incidental’ to the grantor’s possession, use and enjoyment of the property in common with other tenants in common (or in this case co-tenants). Nor would it have interfered with the possession, use and enjoyment of the property by other co-tenants.
It follows that the first of the two alternative bases upon which the Crown put its case that the applicant had entered the house as a trespasser could not be sustained.
There are also difficulties associated with the second way in which the matter was left to the jury, based as it was upon a somewhat questionable inference that the stepfather’s conditional approval of the applicant’s entitlement to enter the house would not have extended to his having done so in an angry state, certainly while armed, and with an intent to assault the applicant’s half-sister. Nonetheless, it cannot be said that this alternative would not be open, as a matter of law, taking the Crown case at its highest. Accordingly, we ordered that there be a new trial, but limited to the alternative case.
In the course of doing so, we observed that the prosecution might have been better advised to have charged the applicant with having entered a part of the house, namely the half-sister’s bedroom, as a trespasser. There might have been no answer to a charge framed and particularised in that way. We considered, however, that it would be unjust to permit the Crown now to re-frame its case in that way, given that it was the Crown’s own error — in the way that it originally sought to prosecute this matter — that has ultimately led to the need to quash the conviction on the aggravated burglary charge.
Accordingly, we invited the Crown to indicate whether, if we ordered a new trial, it would seek to re-cast its case to allow for the possibility that the jury might find that he entered his half-sister’s bedroom as a trespasser. The Crown, by way of written submission, filed after the hearing, undertook not to amend its case in that way. That was, if we may say, an entirely proper response.
It will, of course, be a matter for the Director as to whether he considers it to be in the public interest that there be a re-trial on the charge as originally framed. In so deciding, he will no doubt bear in mind the fact that the applicant has already served a considerable portion of the sentence imposed on both charges.
There is also, of course, the question of the Community Correction Order, which, for the moment, has been set aside. We considered that such an order could only be justified if it were linked to the charge of aggravated burglary. For that reason, the only sentence presently being served, in relation to these charges, is the 6 months’ imprisonment on charge 3. When we pronounced orders in this matter, that sentence was affirmed.
- - - - -
5
3
0