R v Bellino

[1993] QCA 390

]IN THE COURT OF APPEAL [1993] QCA 390

SUPREME COURT OF QUEENSLAND

C.A. No. 2 of 1993.

Brisbane

[R v. Bellino]

T H E Q U E E N
v.
GERALDO BELLINO

(Appellant)

______________________________________________________________

Mr Justice Pincus Mr Justice Davies Mr Justice Thomas

_____________________________________________________________
Judgment delivered 12/10/93.
JUDGMENT OF THE COURT

_____________________________________________________________

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO

APPEAL AGAINST SENTENCE REFUSED.

______________________________________________________________

CATCHWORDS:	CRIMINAL LAW - Official corruption - whether trial should have proceeded without legal representation for the appellant - whether appellant's bail was wrongfully revoked during the hearing - whether the appellant suffered prejudice therefrom - whether counsel for the prosecution was biased against the appellant - whether prosecution failed to call all the witnesses who should have been called.
Counsel:	Mr R Mulholland QC, with him Mr R P Devlin for the Crown.
Appellant conducted his own case.
Solicitor:	Office of Special Prosecutions for the Crown.
Hearing Date:	31 May 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 2 of 1993

Brisbane

Before Pincus J.A. Davies J.A. Thomas J.

T H E Q U E E N

v.

GERALDO BELLINO

(Appellant)

JUDGMENT OF THE COURT

Judgment delivered 12/10/93.

The appellant was charged with four counts of official corruption and convicted on three of them; the jury could not agree as to one count. The learned primary judge sentenced the appellant to 6 years and 3 months imprisonment on each count and recommended that he be considered for release on parole after having served 2 years and 9 months. The appellant seeks to have his conviction set aside and also challenges the correctness of the sentence imposed; however, no argument was addressed to the question of sentence.

The appellant has previously been tried on six counts of a similar character arising out of circumstances which were the subject of evidence in the present case. On that occasion he was convicted on four of the counts and acquitted on two. On appeal, this Court (by a majority) allowed his appeal in respect of the four convictions; a new trial was ordered and it is from the convictions in which that trial terminated that the present appeal is brought.

The notice of appeal raises 20 grounds, some specific and some general; not all of those were pursued at the hearing of the appeal. The complaints then made were various, but principal themes were that the trial should not have proceeded because the appellant was not legally represented, that one of the counsel who appeared for the prosecution (Mr Devlin) was biased against the appellant, that the appellant's bail was wrongfully revoked during the hearing, and that the prosecution did not call all the witnesses who should have been called. We propose to deal, in the order in which they were put before us, with each of the appellant's contentions, other than some which appear to be subsidiary or to be advanced only in support of the principal grounds.

The appellant presented three sets of written submissions, the first, dated 22 April 1993, was not that from which the appellant's address to us was given. The second, a 21 page document not bearing a date, in substance constituted the oral submission made by the appellant at the hearing, with little addition. A third, headed "Synopsis", is a three page document answering a synopsis of the Crown's evidence in the case, a document prepared by the respondent which we have found to be useful; the record is in 12 volumes. The appellant's submissions were well presented; he is not without ability as a lay advocate.

Each of the counts on which the appellant was convicted charged in substance that, on a date falling between two specified dates, the appellant corruptly promised to give to one Jack Reginald Herbert sums of money at a stated monthly rate on account of things to be afterwards done or omitted to be done by persons employed in the Public Service in a capacity not judicial for the prosecution of offenders namely as police officers with a view to the protection from detection and punishment of the appellant and one Vittorio Conte and their associates and employees, they being intending offenders against certain laws. As to the first count, those laws were described as being "laws relating to gaming", and as to the third and fourth, "laws relating to gaming, prostitution and the supply of liquor". Each of the counts was framed in terms based on s. 121(2) of the Criminal Code. In substance, the Crown's case was that the appellant provided Herbert with bribes to arrange protection of unlawful gaming, prostitution and liquor supply activities engaged in by the appellant and Vittorio Conte.

The principal Crown witness was Herbert, but evidence was also called from others such as police officers and professional people concerned with the appellant's affairs. They were called to support the case that there was, over a period of years, a number of profitable illegal enterprises operating under the control of the appellant and Conte, and that their continuance in operation was ensured or assisted by payment to Herbert of moneys, part of which was distributed to members of the police force who might otherwise have so acted as to imperil the continuation of the enterprises.

At his trial the appellant in part represented himself and in part was represented by one Boyd, a layman who was permitted by the judge to adopt that role and also to advise the appellant during the trial. The appellant argued that his trial was unfair because he was unrepresented, having no money with which to defend himself. He relied upon a decision of the High Court in Dietrich (1992) 67 A.L.J.R. 1; in that case Mason C.J. and McHugh J. said at p. 12 :

"...we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available."

The appellant's submission was that, attempts to obtain legal aid for his first trial having failed, he did not apply for legal aid before his re-trial, believing that there was no prospect that it would be granted.

The trial began on 14 September 1992, the appellant representing himself. During the previous month the matter was mentioned, in the presence of the appellant, before the District Court. The judge, as appears from the transcript of 17 August 1992, was told by the appellant that he did not wish to seek legal representation at his trial; the appellant gave as the reason for that his failure to obtain legal aid for his first trial. Following some discussion about other matters, the judge urged the appellant to reconsider the question of legal representation and suggested that the complexity of the trial required that the appellant do so. The appellant did not accept or act on that suggestion. His decisions not to seek legal aid, not to seek adjournment, and to represent himself seem to have been the consequence of his own choice. He did not apply for legal aid, and there was no evidence of indigence.

On or about 26 October 1992, by which time the trial had been in progress for 6 weeks, the appellant's jaw was broken and he was taken to hospital. The circumstances are discussed in some detail below. On 28 October counsel appeared for the appellant to make on his behalf certain statements concerning the injury and its consequences; counsel suggested the trial should either be adjourned or terminated. He informed the judge that the appellant had instructed that an application for legal aid be made, but it emerged that the only purpose was to secure representation during a two week period when, according to counsel's instructions, the appellant expected that his injury would cause him difficulty. Counsel said that he had been told by the appellant :

"...that his present intention would be that at the end of that two-week period when the bands are removed from his teeth and his jaw is unwired, he would then terminate instructions of that barrister and he would conduct the case on his own account." (2639)

Before us, it was submitted by the respondent that what the appellant had in mind was to secure the benefit which has been regarded as flowing from the second paragraph of s. 619 of the Criminal Code, for an accused person who is not defended by counsel and calls no evidence. That submission gains some plausibility from the history of this litigation, and in particular the reason for the appellant's success in the first appeal, when he represented himself. In the view of those constituting the majority of this Court there was a miscarriage of justice in the first trial arising from a statement made by the trial judge to the appellant about the effect of s. 619. It may be that the appellant thought that whatever advantage he might obtain from legal representation would not outweigh the benefit to be gained from preventing the Crown from addressing the jury on the evidence given against him, if no evidence were called on his behalf.

But it is unnecessary to determine precisely what motivated the appellant; his attitude seems plainly enough to have been that he did not wish to apply for legal aid before the trial began, nor to do so when his jaw was broken - except, as to the latter occasion, to have representation during a limited period of incapacity.

After discussing the matter with counsel, and taking into account the appellant's insistence that he wanted only temporary legal representation, the judge decided to proceed with the trial on the basis that the appellant would be assisted by a "McKenzie's friend".

The trial was then adjourned for some days, during which the appellant's bail was revoked, in circumstances discussed below. The trial proper resumed on 4 November 1992 when the "McKenzie's friend" Boyd was allowed to cross-examine the Crown witnesses on the appellant's behalf.

It is plain that the judge acted properly in acquiescing in the appellant's desire to begin the trial without having applied for legal aid. His Honour went as far as he reasonably could in encouraging the appellant to do so, but had no right to force him to seek legal aid. Further, we hold the opinion that the course the judge took in proceeding with the trial on 4 November 1992 when the appellant was not represented by counsel, was a proper one, in the unusual circumstances. The alternative course which was open to his Honour was to adjourn the case, as would plainly have been necessary, to enable an application for legal aid to be made in order to obtain legal representation during what the judge was told would be a fairly short period of the appellant's incapacity. That did not seem to his Honour to be a practical course and we are far from thinking he was wrong.

Looking at the matter more broadly, the impression created from reading the portions of the record in which discussion of the question appears is that the appellant thought he was, in general, better off without legal counsel; the judge did not agree with that, but was not obliged, or indeed entitled, to persuade the appellant further. This ground of appeal fails.

The second point argued was that the judge was wrong in refusing the appellant an adjournment of the trial, asked for on 17 August 1992, on the ground that more preparation time was needed. There is no ground of appeal covering this point and we think it has no substance. The first trial, in which factual issues raised in the second were agitated over a long period of time, took place in 1991 and a new trial was ordered on 14 May 1992. The second trial began four months later. If the appellant was not ready to contest the matter at that stage, it is difficult to see how according him more time could have helped. When the trial began, the appellant did not suggest that he was then unready or make a complaint about the trial proceeding. The judge's refusal (on 20 August) to direct that the matter, then scheduled to start on 14 September 1992, be de- listed, was in our opinion correct.

The third point argued related to the judge's having revoked the appellant's bail during the course of the hearing, as his Honour did on 3 November 1992. The appellant submitted that he incurred disadvantages by the loss of his bail, but we do not need to discuss the extent of the alleged disadvantages.

The ground of attack on the revocation was principally that the appellant was not in what he described as a "show cause situation". In addition, the appellant complains that he had no opportunity to contest the matters which were placed before the judge by the Crown to induce his Honour to revoke bail. The propriety of his Honour's order as to bail depends substantially on factual considerations and we are of the view that no basis for a conclusion that his Honour erred has been established. It is necessary to explain, at least in outline, how the revocation came about and to mention some of the factors which the respondent relied on to justify the course taken.

The appellant said he was assaulted on Monday 26 October 1992 "on my way to serve a subpoena on a witness...". According to evidence given by his "McKenzie's friend" Boyd, the appellant told him late on 26 October that he had "had a fight at the Red Garter looking for Holloway"; the appellant's jaw was broken, as mentioned above. The appellant told us that he was not able to identify his attacker. A curiosity about the cause which was ascribed to the injury is that as the record shows, the Crown had undertaken to serve the man Holloway, mentioned by Boyd, with any subpoena the appellant might issue against him. Boyd said to the Court on 27 October 1992 that the appellant told him he did not know who had hit him on the jaw. The case was adjourned because of the reported injury and on the following day counsel appeared for the appellant and informed the judge that the way in which the appellant came by his injury was obscure. Counsel said he understood that there was some evidence which might be able to be led but that he was not satisfied that it was from a reliable witness. Counsel asked for an adjournment so that the matter could be "properly ventilated". During the course of a discussion the judge expressed himself as being unable to understand why the appellant could not say how he had conducted himself on the evening when the injury was suffered, and who the assailant was.

Counsel for the appellant told the judge he was "not in a

position to disclose who that person may be".

After some further discussion it was arranged that a police officer would interview the appellant in the presence of his legal advisers at a hospital, where the appellant was being treated for his fractured jaw. The matter was adjourned to the afternoon, when counsel for the appellant told the judge that the interview had taken place. It emerged that the appellant was not prepared to say how he came by his injury.

It was then agreed that the judge would convene a hearing at the hospital and the appellant gave evidence there on 28 October. He said, in effect, that he had an argument behind the Red Garter, a "strip club", with a person who was a stranger to him, about parking his car. The argument led to a fight, he said, in the course of which he suffered his injury. At the time when that occurred, so the appellant said, he was in company with a man called "Alan" whom he had asked to help him serve subpoenas. He said he had known "Alan" for about 3 or 4 years but was unaware of his surname. His evidence was to the effect that he (the appellant) knew "Alan" as his niece's boyfriend; he did not know the surname of the niece, either. This was a story likely to arouse suspicion.

The Court was adjourned to Tuesday 3 November 1992, on which date the appellant did not appear. The Court was told that the appellant had been re-admitted to hospital 3 days earlier complaining of severe pain and nausea. Medical evidence was then called of such a kind as, if accepted, to give room for an inference that the appellant had exaggerated the difficulties in which his injury had placed him, for the purpose of avoiding the necessity of appearing further in Court, or deferring that appearance. The judge, on the Crown's application, revoked the appellant's bail on the ground that he had broken, or was likely to break, a condition of his undertaking as to bail: s. 30(3)(b) of the Bail Act 1980. A conditional warrant was issued for the appellant's arrest and he appeared on Wednesday 4 November 1992, having been discharged from hospital. On that occasion there was played a tape-recording of conversation between the appellant and a Crown representative on the previous evening (3 November 1992), apparently to demonstrate that the appellant was able to communicate freely. In Court on that day his speech was, it appears, largely unintelligible. The question of revocation of bail was argued and further evidence called on that subject. The judge's view, as expressed when giving reasons for revocation of the bail, was in substance that he thought the appellant was "either not telling the full truth or that he is dissembling".

In our opinion the judge was entitled to be concerned about the genuineness of the reasons for the appellant's non- appearance and to discern a real risk in the continuation of bail. It is clear that his jaw was broken but the circumstances in which that occurred were, after much equivocation, disclosed in a way calculated to make further investigation of them difficult. The judge was, we think, apprehensive that the injury had been arranged, in the hope that this second trial would be postponed or terminated, or that there was a serious risk of some other event occurring to abort the trial if he remained on bail. His Honour appears to have taken the view that the safer course, if the trial was to be concluded, was to revoke bail "at least temporarily". In that way his Honour reduced the risk of further interruptions to the trial and the risk, to which his Honour referred, of the trial not being able to be completed at all.

Our conclusion is that it has not been demonstrated that the trial judge's revocation of bail was erroneous or that this led to an unfair trial, and this ground of appeal fails.

The next point argued was that the prosecution should have called one Graeme Parker. Parker, so the appellant asserted, would have contradicted some of the evidence given against the appellant. It was further contended that Parker's committal evidence should have been read to the jury, because at the committal some of what Parker said was inconsistent with the evidence of Herbert mentioned above. In Apostilides (1984) 154 C.L.R. 563 it was recognised that the failure of the Crown to call a particular witness may constitute a ground for setting aside a conviction; however, it will do so only if it is seen to give rise to a miscarriage of justice (575). As an example of a case in which such a miscarriage might have occurred, the Court referred at p. 577, to Whitehorn (1983) 152 C.L.R. 657 where the failure to call the complainant child in an indecent assault case contributed to the conclusion that the verdict could not stand. In that case, Deane J emphasised that the prosecutor should not call only those witnesses whose evidence would assist in obtaining a conviction (663), and the judge held that the failure of the Crown to call the complainant or to provide some acceptable explanation for not calling her was unfair.

Here, when the matter was raised at the pre-trial mention on 19 August 1992 the Crown gave a reason for not calling Parker (and others). It was said that :

"The Crown, for good reasons, perceives them as being

very much in the camp of the accused."

Similar views were expressed by the Crown at the trial.

In the light of that intimation it was of course open to the appellant to call Parker if he considered his evidence sufficiently relevant. As to this possibility, one of the submissions made by the appellant was that Parker was away from Brisbane "at his sister's deathbed at the relevant time of my trial, and unavailable". The trial began on 14 September 1992 and the evidence concluded a little over two months later; the trial itself did not finish until December. It is not likely that Parker was unavailable, because of an illness in the family, to be called at any time during the trial.

The appellant disputes the accuracy of the assertion the Crown made to the trial judge, that Parker was perceived to be in his camp. It does not appear to us that the mere existence of a dispute of that sort is sufficient ground to require the Court to hold that the Crown's failure to call Parker brought about a miscarriage of justice. It is not the law that the mere circumstance that there is a witness who is said to be prepared to give evidence contrary to that given by another Crown witness is enough to oblige the Crown to call the former witness.

Some prosecutors are inclined readily to accede to requests by the defence to call a particular witness to enable that witness to be cross-examined, but one should not deduce from that a rule that there is in general any obligation to do so. The prosecutor's fundamental duty in this area, as in others, is to be fair, and fairness by no means always requires that a witness whose evidence or attitude is thought to be adverse to the Crown's case must be called by the Crown.

Nothing has been placed before us to justify the conclusion that Parker's not having been called by the Crown caused a miscarriage of justice. Certainly it is not shown that he was "a witness whose evidence is essential to the unfolding of the case for the Crown": Apostilides at p. 577.

This ground of appeal fails.

The next point taken is that the Crown should have called Geoffrey Luke Crocker and Julie Crocker as well as Alan Holloway.

We have referred above to the legal principles applicable;
it is convenient to consider these three witnesses together.
The argument advanced was that the Crown "gained so many
advantages in not calling the Crockers and Holloway...that not
to call them amounts to a substantial unfairness". Geoffrey
Crocker was said to have made allegations against Mr R P Devlin,
junior counsel for the Crown at the trial, during the committal
proceedings. Then, it was said that Geoffrey Crocker had
confessed to paying for protection for the same prostitution
premises as were involved in the charges against the appellant.
The appellant complained of the judge having not called Crocker
himself, forcing the appellant to subpoena Crocker. The
appellant referred to passages in the transcript as evidence
that Crocker "was ordered out of court". It appears in fact
that it was Boyd, the McKenzie's friend, who sent Crocker away.

The transcript shows that the Crown offered to try to serve Crocker with a subpoena on 20 November 1992. The Crockers and Holloway were discussed between senior counsel for the Crown, Mr Clair, the trial judge and the appellant. Towards the conclusion of that the appellant remarked :

"Your Honour, I just want to make an application to the court to withdraw my subpoenas. It is obvious that these witnesses don't want to come to court to give evidence and I've changed my mind and I don't want them to come any more".

It is notable that nowhere during that discussion did the appellant renew his complaint concerning the Crown's not having called the witnesses; his statements at that stage appeared to suggest that he thought he would be better off without their evidence. However that may be, again it does not appear to us to have been established that the Crown acted unfairly in declining to call the three people under discussion.

It should be added that the complaints with which we have dealt are not all which the appellant has made concerning failure to call witnesses. It was said that the Crown should have called one Hector Hapeta, but there seems to us to be no substance in that.

The next point is the appellant's assertion that it was unfair for the Crown to use Mr Devlin as junior counsel in the case. The ground of objection to Mr Devlin was that, so the appellant asserted, he was at relevant times biased against the appellant. Examples of this were given and although it is unnecessary to mention all of them some require discussion.

As evidence of the "overwhelming bias against the Bellinos" complained of by the appellant, it was said that Parker was not produced, nor Geoffrey or Julie Crocker. Complaint was also made of the fact that neither the appellant's banking records, nor those of Herbert, were produced to the court. It does not appear to us that these complaints have any substance. Mr Devlin was junior counsel and presumably his leader was, subject to any proper instructions given, responsible for decisions made as to what evidence should be called. Apart from that the point seems to us devoid of substance as Mr Devlin, we were informed,

appeared at the committal proceedings and on the first trial

and appeal, no objection being then taken.

One could well imagine that a prosecutor, firmly convinced that an accused person is guilty of most serious offences and is a person of very bad character, would nevertheless be able to perform his or her professional duty properly and fairly. It is expected of course that counsel not permit their emotions, or any feelings of animosity, to dictate the way in which a case is conducted.

The contention of the appellant was that because of bias on the part of junior counsel, he should not have been allowed to act as prosecutor. Improper conduct on the part of a prosecutor may be relevant, and may indeed vitiate a trial, but unlike the position of a judge, eligibility to prosecute must be determined by what the prosecutor does rather than by what he thinks or may be perceived to think. In other words, the existence of strong disapproval or even of bias on the part of a prosecutor against the accused person will not disqualify the prosecutor, although it may be ethically preferable, and forensically advantageous, that he should retire from the case and be replaced by someone more dispassionate. It is not necessary to pursue this interesting question, because the only allegation of impropriety against Mr Devlin (which we note is denied in any event) is an incident more than five years before the present trial when he is alleged to have said to one Inspector Duncan that he was "very concerned about the Bellinos" and to have asked the inspector to "involve him" or "put something on him". The inspector is said to have replied "I don't know anything wrong about him and I won't be making anything up". There is simply nothing else. Duncan was not called by either side, so the question whether his view of Bellino was improperly influenced did not arise. It was not argued that the verdict was vitiated because Mr Devlin had corrupted, or might be inferred to have corrupted, any Crown witnesses.

In our opinion the proposed evidence of a statement allegedly made by junior counsel for the prosecution five years before the trial, in the absence of some further connection to show that some impropriety occurred in the conduct of the trial by the prosecutor, was inadmissible and incapable of showing that the trial miscarried. Having examined all the matters that have been raised, there is no reason to believe that the trial miscarried in any way by reason of alleged bias or misconduct on the part of the Crown's junior counsel.

The next point taken was that what the appellant described as "the London statement, made by Jack Herbert and seized by Scotland Yard" should have been allowed to be tendered, as should Herbert's "indexing of inquiry evidence, whilst he was in London on the run". Reference to the record shows that, as was submitted before us, a statement made by Herbert in London was referred to at the trial. For example, it was mentioned on 5 October 1992 during the appellant's cross-examination of one Bulger, but when Herbert was giving evidence the relevant statement came into possession of the judge who inquired whether the prosecutor wanted it back; Mr Clair said it could come back and the matter was left. It was not tendered. Indeed no basis was laid for its tender.

The so-called indexing of Fitzgerald Inquiry evidence is in a different position. The appellant had a copy of the relevant document, consisting in notes made by Herbert, and cross- examined Herbert on it. The judge refused to let the notes into evidence, when the appellant asked for that to be done, simply holding that the material was not "sufficiently relevant to be admissible". It appears that the material was rather voluminous and it seems obvious that not all of it could have been admissible. Some parts of it would have been damaging to the appellant. To provide a foundation for the admission of part of it, the appellant could have put that part in cross-examination as being inconsistent with Herbert's evidence. That did not occur. At one point the appellant quoted some of the notes to Herbert, but not in such a way as to lay a foundation for their admission under s. 18 of the Evidence Act 1977.

It seems clear that the judge made no error in failing to admit Herbert's London statement, since it was not tendered; nor was his Honour wrong in declining to admit the so-called indexing, which was tendered, but without any foundation for its admission being laid.

Next, it was contended that the judge should have admitted the appellant's personal banking records. The appellant contended that they were "ruled irrelevant". We have been referred to some discussion of these records which took place at the trial, but have found no attempt to tender them, nor any ruling by the judge that they were inadmissible. Presumably what the appellant intends to raise is the failure of the Crown to tender all his banking records; but that question does not appear to have been advanced at the trial, nor is there anything to suggest that the Crown acted unfairly in failing to tender all the records.

It was argued, in a general way, that the judge leant too much in favour of the prosecution in his conduct of the trial, but that is not supported by the transcript. His Honour appears to have performed his functions, so far as the passages to which we have referred show, in a careful and dispassionate way.

Lastly, it was submitted that, as we understood the point, at the second trial the appellant was convicted in respect of a charge on which he had been acquitted at the first trial. The relevant count is the last, which alleges in substance that on a date unknown between 1 January 1984 and 13 May 1985 the appellant corruptly promised to give Herbert sums of money, namely $17,000 each month, in respect of certain matters set out towards the beginning of these reasons. The contention is, we think, that the appellant's acquittal on count 2 at the first trial amounted to an acquittal upon an indictment on which the appellant might have been convicted of the offence charged by count 4 in the second trial; (see s. 17 of the Criminal Code) although no plea of "already acquitted" was entered. The former count 2 alleged that on a date unknown between 26 October 1981 and 12 January 1982 the appellant and Vittorio Conte corruptly promised to give Herbert $6,500 each month in respect of certain matters, being matters of the same kind as are the subject of the present proceedings.

An initial difficulty is that the dates do not correspond;
it is the promise, not the receipt, of money which is alleged.
The appellant's argument is that $2,500 of the sum mentioned in
the previous count 2 is the sum which is part of the $17,000
referred to in count 4 at the second trial. There is clear
evidence from Herbert, which the jury seems to have accepted, of
an arrangement made in 1984 or 1985 involving a total sum of
$17,000. Herbert also said in effect that that sum included
payments of $2,500 per month, but there appears to be nothing to
identify that $2,500 with any similar sum involved in the

previous count 2.

This point must also be rejected.

It should be added that in the first set of notes for argument supplied to the Court by the appellant, some complaint is made of the sentence imposed, but that was not pursued in the more detailed 21 page document referred to above and it is unclear whether the appellant intends to press an argument that the sentence was excessive. In our opinion there could be no substance in such a contention, particularly having regard to the fairly generous recommendation for release on parole after having served 2 years and 9 months.

The appeal against conviction and application for leave to appeal against sentence will both be dismissed.